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Exhibit 10.3
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FOURTH
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of May 12, 2000
among
HPSC, INC.
and
FLEET NATIONAL BANK,
individually and as Agent
and
THE BANKS NAMED HEREIN
with
FLEETBOSTON ROBERTSON STEPHENS INC.
as Arranger
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION.........................................................1
1.1. DEFINITIONS..........................................................................1
1.2. RULES OF INTERPRETATION..............................................................19
2. THE REVOLVING CREDIT FACILITY...................................................................20
2.1. COMMITMENT TO LEND...................................................................20
2.2. COMMITMENT FEE.......................................................................21
2.3. CHANGE OF TOTAL COMMITMENT...........................................................21
2.3.1. REDUCTION OF TOTAL COMMITMENT.............................................21
2.3.2. INCREASE OF TOTAL COMMITMENT..............................................21
2.4. THE REVOLVING CREDIT NOTES...........................................................22
2.5. INTEREST ON REVOLVING CREDIT LOANS...................................................22
2.6. REQUESTS FOR REVOLVING CREDIT LOANS..................................................24
2.7. CONVERSION OPTIONS...................................................................24
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.....................24
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN.............................25
2.7.3. EURODOLLAR RATE LOANS.....................................................25
2.8. FUNDS FOR REVOLVING CREDIT LOANS.....................................................25
2.8.1. FUNDING PROCEDURES........................................................25
2.8.2. ADVANCES BY AGENT.........................................................26
2.9. CHANGE IN BORROWING BASE.............................................................26
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.........................................................26
3.1. MATURITY.............................................................................26
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS.......................................26
3.3. OPTIONAL PREPAYMENTS OF REVOLVING CREDIT LOANS.......................................27
4. THE TERM LOAN...................................................................................27
4.1. CONVERSION OF REVOLVING CREDIT LOANS; THE TERM LOAN..................................27
4.2. THE TERM NOTES.......................................................................28
4.3. REPAYMENTS OF THE TERM LOAN..........................................................28
4.4. OPTIONAL PREPAYMENT OF TERM LOAN.....................................................28
4.5. INTEREST ON TERM LOAN................................................................29
4.5.1. NOTIFICATION BY BORROWER..................................................29
4.5.2. AMOUNTS, ETC..............................................................29
5. LETTERS OF CREDIT...............................................................................29
5.1. LETTER OF CREDIT COMMITMENTS.........................................................29
5.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT.....................................29
5.1.2. LETTER OF CREDIT APPLICATIONS.............................................29
5.1.3. TERMS OF LETTERS OF CREDIT................................................30
5.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS........................................30
5.1.5. PARTICIPATIONS OF BANKS...................................................30
5.2. REIMBURSEMENT OBLIGATION OF THE BORROWER.............................................30
5.3. LETTER OF CREDIT PAYMENTS............................................................31
5.4. OBLIGATIONS ABSOLUTE.................................................................31
5.5. RELIANCE BY ISSUER...................................................................32
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5.6. LETTER OF CREDIT FEE.................................................................32
6. CERTAIN GENERAL PROVISIONS......................................................................33
6.1. FEES.................................................................................33
6.2. FUNDS FOR PAYMENTS...................................................................33
6.2.1. PAYMENTS TO AGENT.........................................................33
6.2.2. NO OFFSET, ETC............................................................33
6.2.3. COMPUTATIONS..............................................................33
6.3. INABILITY TO DETERMINE EURODOLLAR RATE...............................................34
6.4. ILLEGALITY...........................................................................34
6.5. ADDITIONAL COSTS, ETC................................................................35
6.6. CAPITAL ADEQUACY.....................................................................36
6.7. CERTIFICATE..........................................................................37
6.8. INDEMNITY............................................................................37
6.9. OVERDUE AMOUNTS......................................................................37
7. SECURITY AND GUARANTIES.........................................................................37
7.1. SECURITY OF BORROWER.................................................................37
7.2. GUARANTY AND SECURITY OF ACFC........................................................37
8. REPRESENTATIONS AND WARRANTIES..................................................................38
8.1. CORPORATE AUTHORITY..................................................................38
8.1.1. INCORPORATION; GOOD STANDING..............................................38
8.1.2. AUTHORIZATION.............................................................38
8.1.3. ENFORCEABILITY............................................................38
8.2. GOVERNMENTAL APPROVALS...............................................................38
8.3. TITLE TO PROPERTIES; LEASES..........................................................39
8.4. FINANCIAL STATEMENTS AND PROJECTIONS.................................................39
8.4.1. FINANCIAL STATEMENTS......................................................39
8.4.2. PROJECTIONS...............................................................39
8.5. NO MATERIAL ADVERSE CHANGES, ETC.....................................................39
8.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC.................................................40
8.7. LITIGATION...........................................................................40
8.8. NO MATERIALLY ADVERSE CONTRACTS, ETC.................................................40
8.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.........................................40
8.10. TAX STATUS..........................................................................40
8.11. NO EVENT OF DEFAULT.................................................................41
8.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS.........................................41
8.13. ABSENCE OF FINANCING STATEMENTS, ETC................................................41
8.14. PERFECTION OF SECURITY INTEREST.....................................................41
8.15. CERTAIN TRANSACTIONS................................................................41
8.16. EMPLOYEE BENEFIT PLANS..............................................................42
8.16.1. IN GENERAL...............................................................42
8.16.2. TERMINABILITY OF WELFARE PLANS...........................................42
8.16.3. GUARANTEED PENSION PLANS.................................................42
8.16.4. MULTIEMPLOYER PLANS......................................................42
8.17. REGULATIONS U AND X.................................................................42
8.18. ENVIRONMENTAL COMPLIANCE............................................................43
8.19. SUBSIDIARIES, ETC...................................................................44
8.20. BANK ACCOUNTS.......................................................................44
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8.21. ELIGIBLE ACCOUNTS RECEIVABLE, EQUIPMENT AND CONTRACTS...............................45
8.22. SUBORDINATED DEBT...................................................................48
8.23. YEAR 2000 COMPLIANCE................................................................48
9. AFFIRMATIVE COVENANTS OF THE BORROWER...........................................................48
9.1. PUNCTUAL PAYMENT.....................................................................48
9.2. MAINTENANCE OF OFFICE................................................................48
9.3. RECORDS AND ACCOUNTS.................................................................48
9.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION...................................49
9.5. NOTICES..............................................................................50
9.5.1. DEFAULTS..................................................................50
9.5.2. ENVIRONMENTAL EVENTS......................................................51
9.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL.................................51
9.5.4. NOTICE OF LITIGATION AND JUDGMENTS........................................51
9.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES.......................................51
9.7. INSURANCE............................................................................52
9.8. TAXES................................................................................52
9.9. INSPECTION OF PROPERTIES AND BOOKS, ETC..............................................52
9.9.1. GENERAL...................................................................52
9.9.2. COLLATERAL REPORTS........................................................53
9.9.3. COMMUNICATION WITH ACCOUNTANTS............................................53
9.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS..............................53
9.11. EMPLOYEE BENEFIT PLANS..............................................................54
9.12. USE OF PROCEEDS.....................................................................54
9.13. BANK ACCOUNTS.......................................................................54
9.14. CREDIT POLICIES.....................................................................54
9.15. PERFECTED SECURITY INTEREST UNDER CONTRACTS.........................................54
9.16. PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS...........................55
9.17. FURTHER ASSURANCES..................................................................55
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.....................................................55
10.1. RESTRICTIONS ON INDEBTEDNESS........................................................55
10.2. RESTRICTIONS ON LIENS...............................................................57
10.3. RESTRICTIONS ON INVESTMENTS.........................................................58
10.4. DISTRIBUTIONS.......................................................................59
10.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.....................................60
10.5.1. MERGERS AND ACQUISITIONS.................................................60
10.5.2. DISPOSITION OF ASSETS....................................................60
10.6. SALE AND LEASEBACK..................................................................60
10.7. COMPLIANCE WITH ENVIRONMENTAL LAWS..................................................60
10.8. OTHER DEBT..........................................................................61
10.9. EMPLOYEE BENEFIT PLANS..............................................................61
10.10. BANK ACCOUNTS......................................................................61
10.11. SECURITIZATION SUBSIDIARIES STOCK..................................................62
10.12. CHANGE IN CREDIT POLICY............................................................62
11. FINANCIAL COVENANTS OF THE BORROWER............................................................62
11.1. DEBT RATIO..........................................................................62
11.2. CONSOLIDATED TANGIBLE NET WORTH.....................................................62
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11.3. INTEREST COVERAGE...................................................................62
11.4. CAPITAL EXPENDITURES................................................................62
11.5. CONTRACTUALLY DELINQUENT CUSTOMER RECEIVABLES TO GROSS CUSTOMER RECEIVABLES RATIO...62
11.6. RESERVES TO CONTRACTUALLY DELINQUENT CUSTOMER RECEIVABLES...........................62
11.7. ALLOWANCE FOR DOUBTFUL ACCOUNTS.....................................................63
11.8. COLLECTIONS TO BILLINGS.............................................................63
11.9. LEASES..............................................................................63
11.10. EQUIPMENT SUPPLIER CONCENTRATION...................................................63
12. CLOSING CONDITIONS.............................................................................63
12.1. LOAN DOCUMENTS......................................................................63
12.2. CERTIFIED COPIES OF CHARTER DOCUMENTS...............................................63
12.3. CORPORATE ACTION....................................................................64
12.4. INCUMBENCY CERTIFICATE..............................................................64
12.5. VALIDITY OF LIENS...................................................................64
12.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS......................................64
12.7. CERTIFICATES OF INSURANCE...........................................................64
12.8. BANK AGENCY AGREEMENTS..............................................................64
12.9. BORROWING BASE REPORT...............................................................65
12.10. ACCOUNTS RECEIVABLE AGING REPORT...................................................65
12.11. SOLVENCY CERTIFICATE...............................................................65
12.12. OPINION OF COUNSEL.................................................................65
13. CONDITIONS TO ALL BORROWINGS...................................................................65
13.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT...........................................65
13.2. NO LEGAL IMPEDIMENT.................................................................66
13.3. GOVERNMENTAL REGULATION.............................................................66
13.4. PROCEEDINGS AND DOCUMENTS...........................................................66
13.5. BORROWING BASE REPORT...............................................................66
14. EVENTS OF DEFAULT; ACCELERATION; ETC...........................................................66
14.1. EVENTS OF DEFAULT AND ACCELERATION..................................................66
14.2. TERMINATION OF COMMITMENTS..........................................................70
14.3. REMEDIES............................................................................71
14.4. DISTRIBUTION OF COLLATERAL PROCEEDS.................................................71
15. SETOFF.........................................................................................72
16. THE AGENT......................................................................................72
16.1. AUTHORIZATION.......................................................................72
16.2. EMPLOYEES AND AGENTS................................................................73
16.3. NO LIABILITY........................................................................74
16.4. NO REPRESENTATIONS..................................................................74
16.5. PAYMENTS............................................................................75
16.5.1. PAYMENTS TO AGENT........................................................75
16.5.2. DISTRIBUTION BY AGENT....................................................75
16.5.3. DELINQUENT BANKS.........................................................75
16.6. HOLDERS OF NOTES....................................................................76
16.7. INDEMNITY...........................................................................76
16.8. AGENT AS BANK.......................................................................76
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16.9. RESIGNATION.........................................................................76
16.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT.....................................76
16.11. DUTIES IN THE CASE OF ENFORCEMENT..................................................77
17. EXPENSES.......................................................................................77
18. INDEMNIFICATION................................................................................78
19. SURVIVAL OF COVENANTS, ETC.....................................................................78
20. ASSIGNMENT AND PARTICIPATION...................................................................79
20.1. CONDITIONS TO ASSIGNMENT............................................................79
20.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS......................79
20.3. REGISTER............................................................................81
20.4. NEW NOTES...........................................................................81
20.5. PARTICIPATIONS......................................................................81
20.6. DISCLOSURE..........................................................................82
20.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER................................82
20.8. MISCELLANEOUS ASSIGNMENT PROVISIONS.................................................82
20.9. ASSIGNMENT BY BORROWER..............................................................83
21. NOTICES, ETC...................................................................................83
22. GOVERNING LAW..................................................................................83
23. HEADINGS.......................................................................................84
24. COUNTERPARTS...................................................................................84
25. ENTIRE AGREEMENT, ETC..........................................................................84
26. WAIVER OF JURY TRIAL...........................................................................84
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.............................................................85
28. SEVERABILITY...................................................................................85
29. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION..................................................85
29.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY...................................85
29.2. CONFIDENTIALITY.....................................................................86
29.3. PRIOR NOTIFICATION..................................................................86
29.4. OTHER...............................................................................86
30. TRANSITIONAL ARRANGEMENTS......................................................................87
30.1. PRIOR LOAN AGREEMENT SUPERSEDED.....................................................87
30.2. RETURN AND CANCELLATION OF NOTES....................................................87
30.3. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT........................................87
30.4. NO CLAIMS UNDER PRIOR LOAN AGREEMENT................................................87
30.5. INTERBANK SETTLEMENTS...............................................................87
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SCHEDULES
Schedule 1 Banks
Schedule 8.3 Leases
Schedule 8.4.1 Contingent Liabilities
Schedule 8.7 Litigation
Schedule 8.18 Environmental Matters
Schedule 8.19 Subsidiaries
Schedule 8.20 Bank Accounts
Schedule 10.1 Existing Indebtedness
Schedule 10.2(g) Existing Liens
Schedule 10.3 Existing Investments
EXHIBITS
Exhibit A Form of Borrowing Base Report
Exhibit B-1 Form of Revolving Credit Note
Exhibit B-2 Form of Term Note
Exhibit C Form of Loan Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Security Agreement
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Guaranty
Exhibit H Form of Stock Pledge Agreement
Exhibit I Form of Agency Agreement
Exhibit J ACFC Credit Policy
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FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is made as of May 12,
2000, by and among HPSC, INC. (the "Borrower" or "HPSC"), a Delaware corporation
having its principal place of business at 60 State Street, Boston, Massachusetts
02109, AMERICAN COMMERCIAL FINANCE COMPANY (the "Guarantor" or "ACFC"), a
Delaware corporation (solely for the specific purposes herein set forth), FLEET
NATIONAL BANK (f/k/a BankBoston, N.A.), a national banking association, and the
other lending institutions listed on SCHEDULE 1, and FLEET NATIONAL BANK in its
capacity as Agent for itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth in
this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
ACFC. American Commercial Finance Corporation, a Delaware corporation and
wholly-owned Subsidiary of the Borrower.
ACFC CREDIT POLICY. ACFC's criteria for the extension of credit for
receivables and contracts as set forth on EXHIBIT J attached hereto and made a
part hereof.
ACFC RECEIVABLE. An Account Receivable originated by ACFC pursuant to
ACFC's Credit Policy.
ACCOUNTS RECEIVABLE. All rights of the Borrower or ACFC to payment for and
under a Customer Receivable or a Practice Receivable, except for that portion of
the sum of money or other proceeds due thereon that relate to sales, use or
property taxes in conjunction with such transactions, recorded on books of
account in accordance with generally accepted accounting principles.
ADJUSTMENT DATE. See ss. 2.5.
AFFILIATE. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
AGENT. Fleet National Bank acting as agent for the Banks.
AGENT'S SPECIAL COUNSEL. Bingham Dana LLP or such other counsel as may be
approved by the Agent.
APPLICABLE BASE RATE MARGIN. See ss. 2.5.
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APPLICABLE COMMITMENT FEE RATE. The commitment fee rate determined pursuant
to ss. 2.5.
APPLICABLE EURODOLLAR RATE MARGIN. See ss. 2.5.
APPLICABLE MARGIN. See ss. 2.5.
APPLICABLE RATE. See ss. 5.6.
ASSIGNMENT AND ACCEPTANCE. See ss. 20.1.
BALANCE SHEET DATE. December 31, 1999.
BANKS. Fleet and the other lending institutions listed on SCHEDULE 1 hereto
and any other Person who becomes an assignee of any rights and obligations of a
Bank pursuant toss.20.
BASE RATE. The higher of (i) the variable annual rate of interest so
designated from time to time by Fleet as its "prime rate," such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer, and (ii) one-half of one percent (1/2%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, 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 New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
funds brokers of recognized standing selected by the Agent. Changes in the Base
Rate resulting from any changes in Fleet's "prime rate" shall take place
immediately without notice or demand of any kind.
BASE RATE LOANS. Loans bearing interest calculated by reference to the Base
Rate.
BILLINGS. The aggregate amount of invoices rendered by the Borrower or any
of its Subsidiaries (other than the Securitization Subsidiaries) to any Customer
during the relevant period.
BORROWER. As defined in the preamble hereto.
BORROWING BASE. At the relevant time of reference thereto, an amount
determined by the Agent by reference to the most recent Borrowing Base Report
delivered to the Banks and the Agent pursuant to ss.9.4(e), which is equal to
the sum of the following:
(i) 80% of Eligible Accounts Receivable; plus
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(ii) 50% of the Residual Value of Equipment, provided, that the amount
included in the Borrowing Base pursuant to this clause (ii) shall
not exceed $2,000,000; minus
(iii) the Reserve Amount;
PROVIDED, HOWEVER, that (x) the net amount attributable to ACFC Receivables
included in the Borrowing Base shall not comprise more than 50% of the Borrowing
Base and (y) (A) the aggregate gross amount of pre-approved specific use
personally guaranteed line of credit receivables included as Eligible Accounts
Receivable shall not exceed $20,000,000, (B) the aggregate gross amount of
Practice Receivables included as Eligible Accounts Receivable shall not exceed
$40,000,000 and (C) the aggregate gross amount of Progress Payment Notes
included as Eligible Accounts Receivable shall not exceed $10,000,000.
BORROWING BASE REPORT. A Borrowing Base Report signed by the chief
financial officer of the Borrower and in substantially the form of EXHIBIT A
hereto.
BRAVO. HPSC Bravo Funding Corp., a Delaware corporation and wholly-owned
subsidiary of the Borrower.
BRAVO CREDIT AGREEMENT. The lease receivables-backed credit agreement dated
as of January 31, 1995 by and among Bravo, Triple-A One Funding Corporation, a
Delaware corporation and Capital Markets Assurance Corporation, a New York stock
insurance company, as amended by Amendment No. 1 dated as of December 19, 1995,
Amendment No. 2 dated as of October 18, 1996 and Amendment No. 3 dated as of
June 29, 1998.
BRAVO EVENT OF TERMINATION. Any event or condition identified as an "Event
of Termination" in Section 7.01 of the Bravo Purchase Agreement.
BRAVO FACILITY DOCUMENTS. Collectively, the Bravo Purchase Agreement, the
Bravo Credit Agreement, the Bravo Lease Receivables Purchase Agreement and all
other agreements, documents and instruments entered into pursuant thereto or in
connection therewith.
BRAVO LEASE RECEIVABLES PURCHASE AGREEMENT. The Amended and Restated Lease
Receivables Purchase Agreement dated as of March 31, 2000 among Bravo, the
Borrower, Triple-A One Funding Corporation and Capital Markets Assurance
Corporation.
BRAVO PURCHASE AGREEMENT. The Amended and Restated Purchase and
Contribution Agreement dated as of March 31, 2000 by and between Bravo and the
Borrower.
BRAVO TRANSFERRED ASSETS. The accounts, chattel paper, instruments, and
other assets related thereto, comprised in the Collateral which are sold or
otherwise transferred to Bravo pursuant to the Bravo Purchase Agreement.
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BRAVO WIND-DOWN EVENT. Any event or condition identified as a "Wind-Down
Event" in Section 7.01 of the Bravo Credit Agreement or Section 7.01 of the
Bravo Lease Receivables Purchase Agreement.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts are open for the transaction of commercial banking business and,
in the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business
Day.
CAPITAL. HPSC Capital Funding, Inc., a Delaware corporation and
wholly-owned subsidiary of the Borrower.
CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); PROVIDED that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles as in effect as of the date of this Credit Agreement.
CAPITAL EVENT OF TERMINATION. Any event or condition identified as an
"Event of Termination" in Section 7.01 of the Capital Purchase Agreement.
CAPITAL EXPENDITURES. Amounts paid or indebtedness incurred by the Borrower
or any of its Subsidiaries in connection with the purchase or lease by the
Borrower or any of its Subsidiaries of Capital Assets (other than the purchase
of computer software) that would be required to be capitalized and shown on the
balance sheet of such Person in accordance with generally accepted accounting
principles as in effect as of the date of this Credit Agreement.
CAPITAL FACILITY DOCUMENTS. Collectively, the Capital Purchase Agreement,
the Capital Lease-Receivables Purchase Agreement and all other agreements,
documents and instruments entered into pursuant thereto or in connection
therewith.
CAPITALIZED LEASES. Leases (other than vehicle leases) under which the
Borrower or any of its Subsidiaries is the lessee or obligor, the discounted
future rental payment obligations under which are required to be capitalized on
the balance sheet of the lessee or obligor in accordance with generally accepted
accounting principles as in effect as of the date of this Credit Agreement.
CAPITAL LEASE-RECEIVABLES PURCHASE AGREEMENT. The lease receivables
purchase agreement dated as of June 27, 1997 by and among Capital, Borrower,
EagleFunding Capital Corporation, a Delaware corporation and FleetBoston
Robertson Stephens Inc., a Massachusetts corporation, as amended by Amendment
No. 1 dated as of January 30, 1998 and Amendment No. 2 dated as of April 30,
1998.
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CAPITAL PURCHASE AGREEMENT. The Purchase and Contribution Agreement dated
as of June 27, 1997 by and between Capital and the Borrower.
CAPITAL TRANSFERRED ASSETS. The accounts, chattel paper, instruments,
and other assets related thereto, comprised in the Collateral which are sold or
otherwise transferred to Capital pursuant to the Capital Purchase Agreement.
CAPITAL WIND-DOWN EVENT. Any event or condition identified as a "Wind-Down
Event" in Section 7.01 of the Capital Lease-Receivables Purchase Agreement.
CAPITAL SERVICING TERMINATION EVENT. Any event or condition identified as a
"Servicing Event of Default" under the Capital Facility Documents.
CERCLA. See ss. 8.18.
CLOSING DATE. The first date on which the conditions set forth in ss. 12
have been satisfied and any Loans are to be made under this Credit Agreement.
CODE. The Internal Revenue Code of 1986, as amended.
COLLATERAL. All of the property, rights and interests of the Borrower and
ACFC that are or are intended to be subject to the security interests created by
the Security Documents.
COLLECTIONS. The aggregate amount of all payments in cash actually received
by the Borrower or ACFC on Accounts Receivable during the relevant period.
COMMITMENT. With respect to each Bank, the amount set forth on SCHEDULE 1
hereto as the amount of such Bank's commitment to make Loans to, and participate
in the issuance, extension and renewal of Letters of Credit for the account of,
the Borrower, as the same may be modified pursuant to ss. 20.1 hereof, and as
the same may be reduced from time to time; or if such commitment is terminated
pursuant to the provisions hereof, zero.
COMMITMENT PERCENTAGE. With respect to each Bank, the percentage set forth
on SCHEDULE 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks, as the same may be modified pursuant to ss.2.3.2 or ss.20.1.
CONSOLIDATED or CONSOLIDATED. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and certain of
its Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
CONSOLIDATED EARNINGS BEFORE INTEREST AND TAXES. Consolidated Net Income
(or Deficit) for any period, after all expenses and other proper charges but
before payment or provision for any income taxes or interest expense for
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such period, determined in accordance with generally accepted accounting
principles.
CONSOLIDATED NET INCOME (OR DEFICIT). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries for any period, after deduction of
all expenses, taxes, and other proper charges, determined in accordance with
generally accepted accounting principles as in effect on the date of this Credit
Agreement, after eliminating therefrom all extraordinary nonrecurring items of
income.
CONSOLIDATED TANGIBLE CAPITAL FUNDS. The sum of (a) Consolidated Tangible
Net Worth PLUS (b) Subordinated Debt.
CONSOLIDATED TANGIBLE NET WORTH. The excess of Consolidated Total Assets
over Consolidated Total Liabilities, and LESS the sum of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as good will, the
purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, brand names, copyrights,
patents and licenses, and rights with respect to the foregoing; PLUS
(b) all amounts representing any write-up in the book value of any
assets of the Borrower or its Subsidiaries resulting from a revaluation
thereof subsequent to the Balance Sheet Date, excluding adjustments to
translate foreign assets and liabilities for changes in foreign exchange
rates made in accordance with Financial Accounting Standards Board
Statement No. 52; PLUS
(c) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any subscriptions receivable; PLUS
(d) deferred underwriting expenses and deferred origination costs.
CONSOLIDATED TOTAL ASSETS. All assets of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all Indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of Capitalized Leases and including
commitment fees, agency fees, facility fees, balance deficiency fees and similar
fees or expenses in connection with the borrowing of money.
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CONSOLIDATED TOTAL LIABILITIES. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of the Borrower and its
Subsidiaries, whether or not so classified.
CONTRACT. Each lease, finance agreement, note, agreement or instrument
which evidences any Customer Receivable or Practice Receivable relating to any
Account Receivable included in Eligible Accounts Receivable at any time.
CONTRACT FILE. With respect to each Contract, the executed original
counterpart of the Contract that constitutes an "instrument" for purposes of
9-105(1)(i) of the UCC, together with a duly executed allonge transferring such
instrument to the Agent.
CONTRACTUALLY DELINQUENT CUSTOMER RECEIVABLES. All Customer Receivables
owing from any particular Customer in respect of any Contract if any Customer
Receivable owing from such Customer in respect of such Contract is Delinquent.
CONVERSION REQUEST. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance withss.2.7.
CREDIT AGREEMENT. This Fourth Amended and Restated Credit Agreement,
including the Schedules and Exhibits hereto.
CREDIT POLICY. The criteria for the extension of credit for receivables and
contracts of the Borrower including, without limitation, the criteria for
preapproved specific use personally guaranteed line of credit receivables.
CUSTOMER. A Person for whom the Borrower finances property, goods, or
leasehold improvements or for whom the Borrower provides a preapproved specific
use personally guaranteed line of credit, or, in the case of ACFC, a Person for
whom ACFC finances inventory, accounts receivable or working capital
requirements.
CUSTOMER RECEIVABLE. Obligations of any kind or nature to the Borrower or
ACFC (i) incurred by Customers in the ordinary course of their respective
businesses or (ii) arising from the purchase by the Borrower or ACFC of
promissory notes, leases payable or accounts receivable from a third party
obligee.
DEBT RATIO. As of any date of determination, the ratio of (i) Indebtedness
for borrowed money of the Borrower and its Subsidiaries PLUS security deposits
received by the Borrower and its Subsidiaries with respect to Accounts
Receivable to (ii) Consolidated Tangible Capital Funds.
DEFAULT. See ss. 14.
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DELINQUENT. As to any Customer Receivable, a default thereunder (with
respect to payment or otherwise) which at the end of any calendar month has
remained uncured for more than ninety days (on a billed and uncollected
delinquency basis), PROVIDED that during each year of the original contract term
remaining on such Customer Receivable, the Borrower may (without rendering such
Customer Receivable Delinquent) extend one full or partial payment for a period
not to exceed one month beyond the then scheduled payment date, so long as no
more than two such extensions are granted in any year.
DISTRIBUTION. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of the Borrower, directly or indirectly through a Subsidiary of the
Borrower or otherwise; the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of capital stock of the Borrower.
DOLLARS or $. Dollars in lawful currency of the United States of America.
DOMESTIC LENDING OFFICE. Initially, the office of each Bank designated as
such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
DRAWDOWN DATE. The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or continued in accordance with ss. 2.7.
ELIGIBLE ACCOUNTS RECEIVABLE. The aggregate of the unpaid portions of
Accounts Receivable (net of any credits, rebates, offsets, holdbacks or other
adjustments or commissions payable to third parties that are adjustments to such
Accounts Receivable) (i) that the Borrower reasonably and in good faith
determines to be collectible; (ii) that are with Customers that (A) are not
Affiliates of the Borrower, (B) are Customers in an arm's length transaction;
(C) are not insolvent or involved, whether voluntary or involuntary, in any case
or proceeding under any bankruptcy, reorganization, arrangement, insolvency,
adjustment of debt, dissolution, liquidation or similar law of any jurisdiction;
(D) which, from time to time, at the election of the Agent, have been reviewed
by the Agent and found in the Agent's reasonable judgment to be collectible;
(iii) that are in payment of obligations that have been fully performed and are
not subject to dispute or any other similar claims that would reduce the cash
amount payable therefor; (iv) that are not subject to any pledge, restriction,
security interest or other lien or encumbrance other than those created by the
Loan Documents; (v) in which the Agent has a valid and perfected first priority
security interest; (vi) that are not outstanding for more than ninety (90) days
past the date such Accounts Receivable are due, but in no event outstanding for
more than 120 days from date of invoice; (vii) that are not due from any single
Customer if more than fifteen percent (15%) of the aggregate amount of all
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Accounts Receivable owing from such Customer would otherwise not be Eligible
Accounts Receivable; (viii) that are payable in Dollars; (ix) that are not
payable from an office outside of the United States; (x) that are not secured by
a letter of credit unless the Agent has a prior, perfected security interest in
such letter of credit; (xi) that originated in the ordinary course of business
of the Borrower or ACFC; (xii) that are not due from any single Customer if,
after including such Accounts Receivable, the Borrowing Base will be comprised
of more than $2,000,000 of Accounts Receivable owing from such Customer
PROVIDED, HOWEVER that Practice Receivables and ACFC Receivables shall not be
included when calculating this $2,000,000 Customer concentration limitation;
(xiii) that are not due from any single Customer if, after including such
Accounts Receivable, the Borrowing Base will be comprised of more than
$2,000,000 of Practice Receivables owing from such Customer; (xiv) that have not
been transferred to Bravo pursuant to the Bravo Purchase Agreement or Capital
pursuant to the Capital Purchase Agreement; (xv) that are not subject to any
lien or negative pledge pursuant to the Bravo Credit Agreement or the Capital
Lease-Receivables Purchase Agreement; (xvi) that if an ACFC Receivable, the
Contract Files with respect to the Contracts relating thereto have been
delivered to the Agent; (xvii) that with respect to which all the
representations and warranties set forth in ss.8.21 of this Credit Agreement are
true and correct in all material respects on and as of the date hereof except to
the extent that any of such representations and warranties relate, by the
express terms thereof, solely to a date prior to the relevant date; (xvii) that
with respect to which the Borrower or ACFC has filed and maintained the
effectiveness of UCC financing statements against the Obligor in order to
perfect any security interest granted in such Contract in the related collateral
of the Obligor; (xix) that satisfies all applicable requirements of the
Borrower's Credit Policy or if an ACFC Receivable, the ACFC Credit Policy; (xx)
that is freely assignable and arose under a Contract which is also freely
assignable; and (xxi) that if an ACFC Receivable, (A) are not due from any
single customer if, after including such Accounts Receivable, the Borrowing Base
will be comprised of more than $5,000,000 of Accounts Receivable owing from such
Customer, (B) are subject to a maximum advance rate pursuant to the ACFC Credit
Policy not exceeding the sum of 80% of eligible accounts receivable outstanding
for 90 days or less plus 50% of eligible inventory plus 75% of the orderly
liquidation value of machinery as determined by an acceptable equipment
appraiser and (C) that has been documented by experienced counsel in a manner
consistent with sound industry standards. Notwithstanding the foregoing, (i) the
maximum aggregate gross amount of Progress Payment Notes which may be treated as
Eligible Accounts Receivable is $10,000,000, and (ii) (A) the maximum aggregate
gross amount of pre-approved specific use personally guaranteed lines of credit
receivables which may be treated as Eligible Accounts Receivable is $20,000,000
and (B) the maximum aggregate gross amount of Practice Receivables which may be
treated as Eligible Accounts Receivable is $40,000,000. Furthermore, there shall
be deducted from Eligible Accounts Receivable at all times an amount equal to
the excess of (x) the Borrower's Reissued Customer Receivables (originated and
calculated after June 23, 1994) over (y) 10% of the Borrower's Gross Customer
Receivables at such time.
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ELIGIBLE ASSIGNEE. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (iii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, PROVIDED that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (iv) the
central bank of any country which is a member of the OECD; and (v) if, but only
if, an Event of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other financial institution or
other Person approved by the Agent, such approval not to be unreasonably
withheld; PROVIDED that in no event shall an Affiliate of the Borrower be an
Eligible Assignee under any provision of this definition.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
ss. 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
ENVIRONMENTAL LAWS. See ss. 8.18(a).
EQUIPMENT. Each item of equipment that is the subject of any Contract,
including all parts, accessions and modifications thereto and all replacements
thereof.
EQUIPMENT SUPPLIER. A Person (other than the Borrower) who supplies
Equipment to Customers.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with the
Borrower under ss. 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted
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automatically on and as of the effective date of any change in the Eurocurrency
Reserve Rate.
EURODOLLAR BUSINESS DAY. Any Business Day on which commercial banks are
open for international business (including dealings in Dollar deposits) in
London or such other eurodollar interbank market as may be selected by the Agent
in its sole discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Bank designated as
such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining Eurodollar Rate Loans.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate of interest equal to (i) the arithmetic average of the rates per
annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two Eurodollar Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted at or about 10:00 a.m., Boston time, for delivery on the
first day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of the Eurodollar Rate Loan of such
Reference Bank to which such Interest Period applies, divided by (ii) a number
equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
EURODOLLAR RATE LOANS. Loans bearing interest calculated by reference to
the Eurodollar Rate.
EVENT OF DEFAULT. See ss. 14.
FINANCE AGREEMENT. Each finance agreement which evidences any Accounts
Receivable.
FLEET. Fleet National Bank, a national banking association, in its
individual capacity.
FMB. First Massachusetts Bank, N.A. f/k/a The Springfield Institution for
Savings.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (i) When used in ss.11, whether
directly or indirectly through reference to a capitalized term used therein,
means (A) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on the Balance Sheet Date, and (B) to the
extent consistent with such principles, the accounting practice of the Borrower
reflected in its financial statements for the year ended on the Balance Sheet
Date, and (ii) when used in general, other than as provided above, means
principles that are (A) consistent with the principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors, as in effect
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from time to time and (B) consistently applied with past financial statements of
the Borrower adopting the same principles, PROVIDED that in each case referred
to in this definition of "generally accepted accounting principles" a certified
public accountant would, insofar as the use of such accounting principles is
pertinent, be in a position to deliver an unqualified opinion (other than a
qualification regarding changes in generally accepted accounting principles) as
to financial statements in which such principles have been properly applied.
GROSS CUSTOMER RECEIVABLES. The aggregate amount at any time of all amounts
due or to become due in cash on Customer Receivables which amount shall include
the aggregate Residual Value of Equipment.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of ss. 3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTY. The Guaranty in the form of EXHIBIT G attached hereto dated as of
June 23, 1994, and ratified and confirmed as of the date hereof, made by ACFC in
favor of the Banks and the Agent pursuant to which ACFC guaranties to the Banks
and the Agent the payment and performance of the Obligations and otherwise in
form and substance satisfactory to the Banks and the Agent.
HAZARDOUS SUBSTANCES. See ss. 8.18(b).
HEAD OFFICE. The Agent's head office located at 100 Federal Street, Boston,
Massachusetts 02110, or at such other location as the Agent may designate from
time to time.
INDEBTEDNESS. All obligations, contingent and otherwise, that in accordance
with generally accepted accounting principles should be classified upon the
obligor's balance sheet as liabilities, or to which reference should be made by
footnotes thereto, including in any event and whether or not so classified: (i)
all debt and similar monetary obligations, whether direct or indirect; (ii) all
liabilities secured by any mortgage, pledge, security interest, lien, charge, or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; and (iii)
all guarantees, endorsements and other contingent obligations whether direct or
indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest in, directly or indirectly, the
debtor, to purchase indebtedness, or to assure the owner of indebtedness against
loss, through an agreement to purchase goods, supplies, or services for the
purpose of enabling the debtor to make payment of the indebtedness held by such
owner or otherwise, and the obligations to reimburse the issuer in respect of
any letters of credit.
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INELIGIBLE SECURITIES. Securities which may not be underwritten or dealt in
by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1993 (12 U.S.C.ss.24, Seventh), as amended.
INTEREST PAYMENT DATE. (i) As to any Base Rate Loan, the last day of the
calendar quarter which includes the Drawdown Date thereof; and (ii) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (A) 3 months or
less, the last day of such Interest Period and (B) more than 3 months, the date
that is 3 months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
INTEREST PERIOD. With respect to each Loan, (i) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request
(A) for any Base Rate Loan, the last day of the calendar quarter; and (B) for
any Eurodollar Rate Loan, 1, 2, 3 or 6 months; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; PROVIDED that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in ss.2.7,
the Borrower shall be deemed to have requested a conversion of the affected
Eurodollar Rate Loan to a Base Rate Loan and the continuance of all Base
Rate Loans as Base Rate Loans on the last day of the then current Interest
Period with respect thereto;
(d) any Interest Period that begins on the last Eurodollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Eurodollar Business Day of a calendar month; and
(e) any Interest Period relating to any Eurodollar Rate Loan that
would otherwise extend beyond the Maturity Date shall end on the Maturity
Date.
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INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(iii) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (iv) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
INTERNATIONAL STANDBY PRACTICES. With respect to any standby Letter of
Credit, International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Agent in the ordinary course of its
business as a standby letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
LEASE. Each lease which evidences any Account Receivable included in
Eligible Accounts Receivable.
LETTER OF CREDIT. See ss. 5.1.
LETTER OF CREDIT APPLICATION. See ss. 5.1.1.
LETTER OF CREDIT FEE. See ss. 5.6.
LETTER OF CREDIT PARTICIPATION. See ss. 5.1.4.
LOAN DOCUMENTS. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and the Security Documents.
LOAN REQUEST. See ss. 2.6.
LOANS. Collectively, the Revolving Credit Loans made or to be made by the
Banks to the Borrower pursuant to ss. 2 and the Term Loan.
MAJORITY BANKS. As of any date, not less than two Banks holding at least
sixty-six and two-thirds percent (66-2/3%) of the outstanding principal amount
of the Notes on such date; and if no such principal is outstanding, not less
than
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two Banks whose aggregate Commitments constitute at least sixty-six and
two-thirds percent (66-2/3%) of the Total Commitment.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount from time to time that
the beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning ofss.3(37) of
ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
NET INVESTMENT IN LEASES AND NOTES. (i) Gross Customer Receivables, MINUS
(ii) the sum of (A) Unearned Income PLUS (B) allowances for losses PLUS (C)
security deposits, PLUS (iii) deferred origination costs.
NOTES. Revolving Credit Notes or Term Notes.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
or incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made, Reimbursement Obligations incurred or any
interest rate cap or swap arrangements provided, or any of the Notes, Letter of
Credit Applications, Letters of Credit or other instruments at any time
evidencing any thereof.
OBLIGOR. Each Person obligated to make payments under a Contract.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created byss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
PERFECTION CERTIFICATES. The Perfection Certificates as defined in the
Security Agreements.
PERMITTED LIENS. Liens, security interests and other encumbrances permitted
by ss. 10.2.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
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PRACTICE RECEIVABLES. Obligations of any kind or nature to the Borrower
incurred by Customers in connection with the acquisition of a medical practice
or in connection with the re-financing of an existing practice.
PROGRESS PAYMENT NOTES. Obligations of any kind or nature to the Borrower
incurred by Customers in instances when (i) an equipment vendor requires a
deposit prior to delivery of equipment or (ii) a contractor requires progress
payments with respect to leasehold improvements, and where such obligations are
evidenced by short term notes in a form acceptable to the Agent and secured by
the relevant equipment, leasehold improvements and/or the general assets of the
obligor and such notes are required to be repaid upon demand, delivery of the
equipment, completion of the leasehold improvements and/or activation of
subsequent permanent financing.
PRIOR LOAN AGREEMENT. The Third Amended and Restated Revolving Credit
Agreement dated as of March 16, 1998 by and among the Borrower, Fleet, and the
other banks named therein (as heretofore amended and in effect prior to the date
hereof).
RATIO CALCULATION DATE. See ss. 2.5.
REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries; PROVIDED HOWEVER that the
definition of Real Estate shall not include office space leased by the Borrower
or any of its Subsidiaries in buildings where the Borrower or any of its
Subsidiaries do not occupy more than fifty percent (50%) of such building.
RECORD. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
REFERENCE BANK. Fleet.
REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in ss. 5.2.
REISSUED CUSTOMER RECEIVABLES. Customer Receivables that are issued by the
Borrower with respect to Customer Receivables (i) which have previously been
referred to a collection agency or attorney for collection, (ii) with respect to
which enforcement action against the Customer has previously been commenced or
(iii) the original terms of which have been altered to extend the time for
payment or reduce the interest rate or total indebtedness thereon if such
Customer Receivables are Delinquent at the time of such alteration of terms;
provided that Reissued Customer Receivables shall not include any Customer
Receivable which shall not have been Delinquent at any time within the
immediately preceding twelve months.
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RENTAL OBLIGATIONS. All present or future obligations of the Borrower or
any of its Subsidiaries under any rental agreements or leases of real or
personal property, other than (i) obligations that can be terminated by the
giving of notice without liability to the Borrower or such Subsidiary in excess
of the liability for rent due as of the date on which such notice is given and
under which no penalty or premium is paid as a result of any such termination,
and (ii) obligations in respect of Capitalized Leases.
RESERVE AMOUNT. $1,000,000.
RESERVES. With respect to any fiscal quarter, the ending allowance for
doubtful accounts (excluding the Securitization Subsidiaries) on the Borrower's
balance sheet at the end of such fiscal quarter, prepared in accordance with
generally accepted accounting principles.
RESIDUAL VALUE OF EQUIPMENT. The aggregate estimated residual value of
equipment at end of lease term of the Borrower and the Subsidiaries (other than
the Securitization Subsidiaries) as determined in accordance with generally
accepted accounting principles.
REVOLVING CREDIT LOAN MATURITY DATE. May 9, 2001.
REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by the
Banks to the Borrower pursuant to ss. 2.
REVOLVING CREDIT NOTES. See ss. 2.4.
SALE AGREEMENTS. Collectively, (i) the dental practice receivables-backed
credit agreement dated as of April 13, 1995 by and between the Borrower and FMB;
(ii) the sale agreement dated as of November 16, 1995 by and between the
Borrower and FMB; (iii) the sale agreement dated as of March 29, 1996 by and
between the Borrower and FMB; (iv) the sale agreement dated as of June 26, 1996
by and between the Borrower and FMB; (v) the sale agreement dated as of
September 30, 1996 by and between the Borrower and First Essex Bank, FSB; (vi)
the sale agreement dated as of September 26, 1996 by and between the Borrower
and Cambridge Savings Bank; (vii) the sale agreement by and between the Borrower
and Century Bank and Trust Company dated June 13, 1996; and (viii) any other
similar sale or credit agreements entered into from time to time by and between
the Borrower and a financial institution PROVIDED THAT (A) no Event of Default
has occurred and is continuing at the time the Borrower enters into any such
sale or credit agreement or would result therefrom; (B) such agreement is
substantially in the form of one of the Sale Agreements enumerated in
subsections (i) through (viii) of this definition and (C) such agreements are
otherwise in form and substance approved by the Agent in writing.
SECTION 20 SUBSIDIARY. A Subsidiary of the bank holding company controlling
any Bank, which Subsidiary has been granted authority by the Federal Reserve
Board to underwrite and deal in certain Ineligible Securities.
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SECURITIZATION SUBSIDIARIES. Together, Bravo and Capital.
SECURITY AGREEMENTS. The (i) Security Agreement dated as of June 23, 1994,
and ratified and confirmed as of the date hereof, between the Borrower and the
Agent and (ii) the Security Agreement dated June 23, 1994, and ratified and
confirmed as of the date hereof, between ACFC and the Agent, each in the form of
EXHIBIT E hereto attached hereto and otherwise in form and substance
satisfactory to the Banks and the Agent.
SECURITY DOCUMENTS. The Guaranty, the Security Agreements and the Stock
Pledge Agreement.
SENIOR SUBORDINATED NOTE INDENTURE. The Indenture between HPSC, Inc. as
Issuer and State Street Bank and Trust Company, as Trustee entered into at the
time of issuance of up to $23,000,000 of Senior Subordinated Notes.
STOCK PLEDGE AGREEMENT. The Stock Pledge Agreement dated June 23, 1994, and
ratified and confirmed as of the date hereof, between the Borrower and the Agent
and in form and substance satisfactory to the Banks and the Agent.
SUBORDINATED DEBT. The Senior Subordinated Notes Due 2007 issued by the
Borrower in an aggregate principal amount not exceeding $23,000,000 which are
expressly subordinated and made junior to the payment and performance in full of
the Obligations, and evidenced as such by the Senior Subordinated Note
Indenture.
SUBSIDIARY. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
TERM LOAN. The term loan made or to be made by the Banks to the Borrower on
the Revolving Credit Loan Maturity Date as contemplated by ss. 4.
TERM LOAN MATURITY DATE. May 7, 2002.
TERM NOTES. See ss. 4.2.
TOTAL COMMITMENT. The sum of the Commitments of the Banks, as in effect
from time to time.
TRANSFERRED ASSETS. Collectively, the Bravo Transferred Assets and the
Capital Transferred Assets.
TYPE. As to any Loan, its nature as a Base Rate Loan or a Eurodollar Rate
Loan.
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UCC. The Uniform Commercial Code as enacted and in effect from time to time
in the Commonwealth of Massachusetts.
UNEARNED INCOME. With respect to Customer Receivables any interest
component to be paid by the Customer in the future in connection with such
Customer Receivable which is accounted for by the Borrower as unearned income
under generally accepted accounting practices.
UNIFORM CUSTOMS. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or any successor version thereto adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which the
Borrower does not reimburse the Agent and the Banks on the date specified in,
and in accordance with, ss. 5.2.
VOTING STOCK. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
YEAR 2000 COMPLIANCE. The risk that computer applications used by the
Borrower and its Subsidiaries may be unable to recognize and properly perform
date-sensitive functions involving certain dates prior to, and any date after,
December 31, 1999.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
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(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts, have the meanings
assigned to them therein, with the term "instrument" being that defined
under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
(j) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(k) This Credit Agreement and the other Loan Documents are the result
of negotiation among, and have been reviewed by counsel to, among others,
the Agent and the Borrower and are the product of discussions and
negotiations among all parties. Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Agent or
any of the Banks merely on account of the Agent's or any Bank's involvement
in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Revolving Credit Loan Maturity Date upon notice
by the Borrower to the Agent given in accordance with ss.2.6, such sums as are
requested by the Borrower up to a maximum aggregate principal amount outstanding
(after giving effect to all amounts requested) at any one time equal to such
Bank's Commitment MINUS such Bank's Commitment Percentage of the sum of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations, PROVIDED that
the sum of the outstanding amount of the Revolving Credit Loans (after giving
effect to all amounts requested) PLUS the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not at any time exceed the lesser of (i) the
Total Commitment and (ii) the Borrowing Base. The Revolving Credit Loans shall
be made PRO RATA in accordance with each Bank's Commitment Percentage. Each
request for a Revolving Credit Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in ss. 12 and ss. 13,
in the case of the initial Revolving
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Credit Loans to be made on the Closing Date, and ss.13, in the case of all other
Revolving Credit Loans, have been satisfied on the date of such request.
2.2. COMMITMENT FEE. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a commitment fee calculated at the Applicable Commitment Fee Rate per annum on
the average daily amount during each calendar quarter or portion thereof from
the Closing Date to the Revolving Credit Loan Maturity Date by which the Total
Commitment MINUS the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the outstanding amount of Loans during such
calendar quarter. The commitment fee shall be payable quarterly in arrears on
the first day of each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the date hereof, with a
final payment on the Revolving Credit Loan Maturity Date or any earlier date on
which the Commitments shall terminate.
2.3. CHANGE OF TOTAL COMMITMENT.
2.3.1. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the
right at any time and from time to time upon five (5) Business Days prior
written notice to the Agent to reduce by $500,000 or an integral multiple
thereof or terminate entirely the unborrowed portion of the Total
Commitment, whereupon the Commitments of the Banks shall be reduced PRO
RATA in accordance with their respective Commitment Percentages of the
amount specified in such notice or, as the case may be, terminated.
Promptly after receiving any notice of the Borrower delivered pursuant to
this ss.2.3.1, the Agent will notify the Banks of the substance thereof.
Upon the effective date of any such reduction or termination, the Borrower
shall pay to the Agent for the respective accounts of the Banks the full
amount of any commitment fee then accrued on the amount of the reduction.
No reduction of the Commitments may be reinstated.
2.3.2. INCREASE OF TOTAL COMMITMENT. Unless a Default or Event of
Default has occurred and is continuing, the Borrower may request, on more
than one occasion prior to the Revolving Credit Loan Maturity Date, that
the Total Commitment be increased subject to the approval of the Agent,
provided that the Total Commitment shall not in any event exceed
$125,000,000, PROVIDED, HOWEVER, that (i) any Bank which is a party to this
Credit Agreement prior to such increase may but shall not be required to
participate in such increase, (ii) in the event that a new Bank provides
additional funding under this ss.2.3.2, such new Bank must be reasonably
acceptable to the Agent and the Borrower, and (iii) the Banks' Commitment
Percentages shall be correspondingly adjusted, as necessary, to reflect any
increase in the Total Commitment and SCHEDULE 1 shall be amended to reflect
such adjustments.
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2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of EXHIBIT B hereto (each a "Revolving Credit Note" and collectively, the
"Revolving Credit Notes"), completed with appropriate insertions. One Revolving
Credit Note shall be payable to the order of each Bank in a principal amount
equal to such Bank's Commitment or, if less, the outstanding amount of all
Revolving Credit Loans made by such Bank, plus interest accrued thereon, as set
forth below. The Borrower irrevocably authorizes each Bank to make or cause to
be made, at or about the time of the Drawdown Date of any Revolving Credit Loan
or at the time of receipt of any payment of principal on such Bank's Revolving
Credit Note, an appropriate notation on such Bank's Revolving Credit Note Record
reflecting the making of such Revolving Credit Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Revolving Credit Loans
set forth on such Bank's Revolving Credit Note Record shall be PRIMA FACIE
evidence of the principal amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any such amount on such Bank's
Revolving Credit Note Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided
in ss. 6.10,
(a) The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Loan made by the Banks to the Borrower from
the Drawdown Date, until such principal amount is paid in full, at an
annual rate equal to, (i) with respect to any Base Rate Loan, the Base Rate
in effect from time to time PLUS the Applicable Base Rate Margin (as set
forth in ss.2.5(b) (the "Applicable Base Rate Margin")), and (ii) with
respect to any Eurodollar Rate Loan, the Eurodollar Rate in effect for the
applicable Interest Period PLUS the Applicable Eurodollar Rate Margin (as
set forth in ss.2.5(b) (the "Applicable Eurodollar Rate Margin")) (the
Applicable Base Rate Margin or the Applicable Eurodollar Rate Margin,
whichever is applicable, is sometimes referred to herein as the "Applicable
Margin").
(b) The Applicable Margin and the Applicable Commitment Fee Rate
shall be the annual percentage rates in effect from time to time determined
in accordance with the following provisions of this ss.2.5. The Agent shall
give notice of the Applicable Margin and the Applicable Commitment Fee Rate
to the Borrower and the Banks five (5) Business Days after the delivery to
the Agent of the required quarterly financial statements and compliance
certificate pursuant to ss.ss.9.4(b) and (c) which quarterly financial
statements shall include, in reasonable detail, a calculation of the Debt
Ratio as of the date (the "Ratio Calculation Date") which is the end of the
quarterly period covered by such quarterly financial statements, based on
the Debt Ratio as of such
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Ratio Calculation Date, with such determination of the Applicable Margin
and the Applicable Commitment Fee Rate to be made in accordance with the
following table:
Applicable Base Applicable Applicable
Rate Margin Eurodollar Rate Commitment
Debt Ratio (per annum) Margin Fee Rate
---------- --------------- (per annum) (per annum)
--------------- -----------
greater than or 0.25% 1.75% 0.45%
equal to 6.00:1.00
less than 6.00:1.00 0% 1.50% 0.375%
(c) The Applicable Margin and the Applicable Commitment Fee Rate
so determined pursuant to the foregoing table shall become effective as of
the date (the "Adjustment Date") which is the first day of the month which
immediately follows the date of receipt by the Agent of the applicable
quarterly financial statements and Compliance Certificates delivered
pursuant to ss.ss.9.4(b) and (c). The Applicable Margin and the Applicable
Commitment Fee Rate which becomes effective on each such Adjustment Date
shall remain in effect (subject to the other provisions of this ss.2.5 and
except as otherwise provided in ss.6.10 hereof) until the next Adjustment
Date; PROVIDED, HOWEVER, in the event the Borrower fails to deliver to the
Agent and the Banks the quarterly financial statements and Compliance
Certificate in accordance with ss.ss.9.4(b) and (c) prior to any scheduled
Adjustment Date, the Applicable Margin and the Applicable Commitment Fee
Rate shall automatically be the highest Applicable Margin and the highest
Applicable Commitment Fee Rate set forth above commencing on the date which
would have otherwise been the next Adjustment Date had such financial
statement and Compliance Certificate been delivered in accordance with
ss.ss.9.4(b) and (c) and continuing until the next scheduled delivery of
financial statements and Compliance Certificate. Notwithstanding the
provisions of the preceding two sentences, if at any time the Debt Ratio as
of any applicable Ratio Calculation Date was actually a ratio other than
that ratio on the basis of which the Agent determined the rate of interest
in effect hereunder on any date, then such interest rate and commitment fee
determination shall be adjusted retroactively to the appropriate Adjustment
Date on the basis of such corrected determination of the actual Debt Ratio
for the four (4) quarter period ended on such Ratio Calculation Date, and
within ten (10) Business Days after notice thereof in reasonable detail
requesting a
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retroactive adjustment of interest and commitment fees previously paid
given by the Borrower, the Agent or any Bank, the Borrower shall pay to the
Banks, or the Banks severally, on a ratable basis, shall credit the
Borrower with, as the case may be, the amount of the appropriate
retroactive adjustment in respect of such adjusted interest rate and
commitment fee for any portion of any period as to which interest has been
paid.
(d) The Borrower promises to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect thereto
and at maturity of such Loan.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give to the
Agent written notice in the form of EXHIBIT C hereto (or telephonic notice
confirmed in a writing in the form of EXHIBIT C hereto) of each Revolving Credit
Loan requested hereunder (a "Loan Request") no less than (i) 12:00 noon (Boston
time) one (1) Business Day prior to the proposed Drawdown Date of any Base Rate
Loan and (ii) three (3) Eurodollar Business Days prior to the proposed Drawdown
Date of any Eurodollar Rate Loan. Each such notice shall specify (A) the
principal amount of the Revolving Credit Loan requested, (B) the proposed
Drawdown Date of such Revolving Credit Loan, (C) the Interest Period for such
Revolving Credit Loan and (D) the Type of such Loan. Promptly upon receipt of
any such notice, the Agent shall notify each of the Banks thereof. Each such
notice shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Revolving Credit Loan requested from the Banks on the
proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate amount
of $100,000 or an integral multiple thereof.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, PROVIDED that (i)
with respect to any such conversion of a Revolving Credit Loan to a Base
Rate Loan, the Borrower shall give the Agent written notice prior to 1:00
p.m. one (1) Business Day prior to the date of such election; (ii) with
respect to any such conversion of a Eurodollar Rate Loan into a Revolving
Credit Loan of another Type, such conversion shall only be made on the last
day of the Interest Period with respect thereto; (iii) with respect to any
such conversion of a Base Rate Loan to a Eurodollar Rate Loan, the Borrower
shall give the Agent at least three (3) Eurodollar Business Days prior
written notice of such election and (iv) no Revolving Credit Loan may be
converted into a Eurodollar Rate Loan when any Default or Event of Default
has occurred and is continuing. On the date on which such conversion is
being made each Bank shall take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic Lending Office or its
Eurodollar Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be converted as provided
herein, PROVIDED
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that partial conversions shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof. Each Conversion Request relating to
the conversion of a Revolving Credit Loan to a Eurodollar Rate Loan shall
be irrevocable by the Borrower.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
Credit Loans of any Type may be continued as such upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in ss.2.7.1; PROVIDED that no Eurodollar Rate
Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event of Default of which
the officers of the Agent active upon the Borrower's account have actual
knowledge. In the event that the Borrower fails to provide any such notice
with respect to the continuation of any Eurodollar Rate Loan as such, then
such Eurodollar Rate Loan shall be automatically converted to a Base Rate
Loan on the last day of the first Interest Period relating thereto. The
Agent shall notify the Banks promptly when any such automatic conversion
contemplated by this ss.2.7.2 is scheduled to occur.
2.7.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less
than $1,000,000 or a whole multiple of $100,000.
2.8. FUNDS FOR REVOLVING CREDIT LOANS.
2.8.1. FUNDING PROCEDURES. Not later than 2:00 p.m. (Boston time) on
the proposed Drawdown Date of any Revolving Credit Loans, each of the Banks
will make available to the Agent, at its Head Office, in immediately
available funds, the amount of such Bank's Commitment Percentage of the
amount of the requested Revolving Credit Loans. Upon receipt from each Bank
of such amount, and upon receipt of the documents required by ss.ss.12 and
13 and the satisfaction of the other conditions set forth therein, to the
extent applicable, the Agent will make available to the Borrower the
aggregate amount of such Revolving Credit Loans made available to the Agent
by the Banks. The failure or refusal of any Bank to make available to the
Agent at the aforesaid time and place on any Drawdown Date the amount of
its Commitment Percentage of the requested Revolving Credit Loans shall not
relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's Commitment
Percentage of any requested Revolving Credit Loans. As an alternative to
the foregoing, advances may be made pursuant to cash management
arrangements satisfactory to the Agent and the Banks.
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2.8.2. ADVANCES BY AGENT. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such Bank's
Commitment Percentage of the Loans to be made on such Drawdown Date, and
the Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If any
Bank makes available to the Agent such amount on a date after such Drawdown
Date, such Bank shall pay to the Agent on demand an amount equal to the
product of (i) the average computed for the period referred to in clause
(iii) below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such
period, TIMES (ii) the amount of such Bank's Commitment Percentage of such
Revolving Credit Loans, TIMES (iii) a fraction, the numerator of which is
the number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Bank's Commitment Percentage of such Loans
shall become immediately available to the Agent, and the denominator of
which is 365. A statement of the Agent submitted to such Bank with respect
to any amounts owing under this paragraph shall be PRIMA FACIE evidence of
the amount due and owing to the Agent by such Bank. If the amount of such
Bank's Commitment Percentage of such Loans is not made available to the
Agent by such Bank within three (3) Business Days following such Drawdown
Date, the Agent shall be entitled to recover such amount from the Borrower
on demand, with interest thereon at the rate per annum applicable to the
Loans made on such Drawdown Date.
2.9. CHANGE IN BORROWING BASE. The Borrowing Base shall be determined
monthly (or at such other interval as may be specified pursuant to ss.9.4(e)) by
the Agent by reference to the Borrowing Base Report delivered to the Banks and
the Agent pursuant to ss.9.4(e).
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. MATURITY. The Borrower promises to pay on the Revolving Credit Loan
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time the sum
of the outstanding amount of the Revolving Credit Loans, the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds the lesser of (i) the
Total Commitment and (ii) the Borrowing Base, for more than five (5) consecutive
Business Days, then the Borrower shall immediately pay the amount of such excess
to the Agent for the respective accounts of the Banks for application: first, to
any Unpaid Reimbursement Obligations; second, to the Revolving Credit Loans; and
third, to provide to the Agent cash collateral for Reimbursement Obligations as
contemplated by ss. 5.2(b) and (c). Each payment of any Unpaid Reimbursement
Obligations or prepayment of the
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Revolving Credit Loans shall be allocated among the Banks, in proportion, as
nearly as practicable, to the Reimbursement Obligation owing to each such Bank
or (as the case may be) the respective unpaid principal amount of each Bank's
Note, with adjustments to the extent practicable to equalize any prior payments
or repayments not exactly in proportion. In addition, collections of Accounts
Receivable shall be applied to the Revolving Credit Loans pursuant to cash
management arrangements satisfactory to the Agent and the Banks.
3.3. OPTIONAL PREPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower shall
have the right, at its election, to prepay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, PROVIDED that the full or partial prepayment of the outstanding amount
of any Eurodollar Rate Loans pursuant to this ss.3.3 may be made only on the
last day of the Interest Period relating thereto. The Borrower shall give the
Agent, no later than 1:00 p.m., Boston time, one (1) Business Day prior to the
date of any proposed prepayment written notice, of any proposed prepayment
pursuant to this ss.3.3 of Base Rate Loans, and three (3) Eurodollar Business
Days notice of any proposed prepayment pursuant to this ss.3.3 of Eurodollar
Rate Loans, in each case, specifying the proposed date of payment of Revolving
Credit Loans and the principal amount to be paid. Each such partial prepayment
of the Revolving Credit Loans shall be in an integral multiple of $100,000,
shall be accompanied by the payment of accrued interest on the principal prepaid
to the date of payment and shall be applied first to the principal of Base Rate
Loans and then to the principal of Eurodollar Rate Loans, at the Borrower's
option. Each partial prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Bank's Note, with adjustments to the extent practicable to equalize any
prior prepayments not exactly in proportion.
4. THE TERM LOAN.
4.1. CONVERSION OF REVOLVING CREDIT LOANS; THE TERM LOAN. Subject to the
terms and conditions set forth in this Credit Agreement, including, without
limitation, the satisfaction of the conditions set forth in ss.13 hereof and the
execution and delivery by the Borrower of the Term Notes to the Banks, on the
Revolving Credit Loan Maturity Date the aggregate amount of the outstanding
Revolving Credit Loans shall be converted into a Term Loan in the aggregate
principal amount equal to the aggregate outstanding principal balance of the
Revolving Credit Loans on such date, held severally by the Banks in accordance
with their Commitment Percentages. The Term Loan outstanding after conversion
shall be evidenced by the separate Term Notes (the "Term Notes") of the Borrower
payable to the order of each Bank, each dated as of the Revolving Credit Loan
Maturity Date and in substantially the form of EXHIBIT B-2 hereto, completed
with appropriate insertions. On the Revolving Credit Loan Maturity Date, the
Borrower shall pay to the Agent for the PRO RATA accounts of the Banks, all
interest accrued to such date on the Revolving Credit Loans, together with any
Unpaid Reimbursement Obligations, any commitment fees and other fees payable to
the Agent and the Banks hereunder and, as soon as
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reasonably practicable after such payment, each Bank shall surrender to the
Borrower its Revolving Credit Note against receipt of its Term Note evidencing
the amount of the outstanding Revolving Credit Loans so converted.
4.2. THE TERM NOTES. Each Term Note shall represent the obligation of the
Borrower to pay to such Bank the principal amount of the Term Loan evidenced by
the Term Note plus interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes each Bank to make or cause to be made a notation on such
Bank's Term Note Record reflecting the original principal amount of such Bank's
Commitment Percentage of the Term Loan and, at or about the time of such Bank's
receipt of any principal payment on such Bank's Term Note, an appropriate
notation on such Bank's Term Note Record reflecting such payment. The aggregate
unpaid amount set forth on such Bank's Term Note Record shall be prima facie
evidence of the principal amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any such amount on such Bank's
Term Note Record shall not affect the obligations of the Borrower hereunder or
under any Term Note to make payments of principal of and interest on any Term
Note when due.
4.3. REPAYMENTS OF THE TERM LOAN. The Borrower promises to pay to the Agent
for the account of the Banks the principal amount of the Term Loan in four (4)
consecutive quarterly installments, each equal as near as possible to 1/4th of
the principal amount of the Term Loan outstanding on the Revolving Credit Loan
Maturity Date, such installments to be due and payable on the last day of each
fiscal quarter of the Borrower, commencing with the fiscal quarter ending June
30, 2001, with a final payment on the Term Loan Maturity Date in an amount equal
to the unpaid balance of the Term Loan.
4.4. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrower shall have the right at
any time to prepay the Term Notes on or before the Term Loan Maturity Date, as a
whole, or in part, upon not less than seven (7) Business Days prior written
notice to the Agent, without premium or penalty, PROVIDED that (a) each partial
prepayment shall be in the principal amount of $5,000,000 or an integral
multiple thereof, (b) any portion of any Eurodollar Rate Loan which has been
prepaid on any day other than the last day of the Interest Period relating
thereto shall be subject to the payment by the Borrower of any applicable costs
associated with such prepayment as set forth in ss.6.9 hereof, and (c) each
partial prepayment shall be allocated among the Banks, in proportion, as nearly
as practicable, to the respective outstanding amount of each Bank's Term Note,
with adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
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4.5. INTEREST ON TERM LOAN.
4.5.1. NOTIFICATION BY BORROWER. The Borrower shall notify the Agent,
such notice to be irrevocable, at least four (4) Eurodollar Business Days
prior to the Drawdown Date of the Term Loan if all or any portion of the
Term Loan is to be a Eurodollar Rate Loan. After the Term Loan has been
made, the provisions of ss.2 shall apply MUTATIS MUTANDIS with respect to
all or any portion of the Term Loan so that the Borrower may have the same
interest rate options with respect to all or any portion of the Term Loan
as it would be entitled to with respect to the Revolving Credit Loans.
4.5.2. AMOUNTS, ETC. Any portion of the Term Loan which is a
Eurodollar Rate Loan relating to any Interest Period shall be in the amount
of $5,000,000 or a whole multiple or $1,000,000 in excess thereof. No
Interest Period relating to the Term Loan or any portion thereof which is a
Eurodollar Rate Loan shall extend beyond the date on which a regularly
scheduled installment payment of the principal of the Term Loan is to be
made unless a portion of the Term Loan at least equal to such installment
payment is a Base Rate Loan.
5. LETTERS OF CREDIT.
5.1. LETTER OF CREDIT COMMITMENTS.
5.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms and
conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Agent's customary form (a "Letter of
Credit Application"), the Agent on behalf of the Banks and in reliance upon
the agreement of the Banks set forth in ss.5.1.4 and upon the
representations and warranties of the Borrower contained herein, agrees, in
its individual capacity, to issue, extend and renew for the account of the
Borrower one or more letters of credit prior to the Revolving Credit Loan
Maturity Date (individually, a "Letter of Credit"), in such form as may be
requested by the Borrower and agreed to by the Agent; PROVIDED, HOWEVER,
that, after giving effect to such request, (a) the sum of the aggregate
Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not
exceed Two Million Dollars ($2,000,000) at any one time and (b) the sum of
(i) the Maximum Drawing Amount on all Letters of Credit, (ii) all Unpaid
Reimbursement Obligations, and (iii) the amount of all Loans outstanding
shall not exceed the lesser of (A) the Total Commitment and (B) the
Borrowing Base.
5.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
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5.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein and (ii) have an expiry date no later than the date which
is fourteen (14) Business Days prior to the Revolving Credit Loan Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be subject
to the Uniform Customs or, in the case of a Standby Letter of Credit,
either the Uniform Customs or the International Standby Practices.
5.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS. Each Bank severally agrees
that it shall be absolutely liable, without regard to the occurrence of any
Default or Event of Default or any other condition precedent whatsoever, to
the extent of such Bank's Commitment Percentage, to reimburse the Agent on
demand for the amount of each draft paid by the Agent under each Letter of
Credit to the extent that such amount is not reimbursed by the Borrower
pursuant to ss. 5.2 (such agreement for a Bank being called herein the
"Letter of Credit Participation" of such Bank).
5.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a Bank shall
be treated as the purchase by such Bank of a participating interest in the
Borrower's Reimbursement Obligation under ss.5.2 in an amount equal to such
payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to ss. 5.2.
5.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the Agent
to issue, extend and renew each Letter of Credit and the Banks to participate
therein, the Borrower hereby agrees to reimburse or pay to the Agent, for the
account of the Agent or (as the case may be) the Banks, with respect to each
Letter of Credit issued, extended or renewed by the Agent hereunder,
(a) except as otherwise expressly provided in ss.5.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored
by the Agent, or the Agent otherwise makes a payment under or pursuant to
such Letter of Credit, (i) the amount paid by the Agent under or pursuant
to such Letter of Credit, and (ii) the amount of any customary taxes, fees,
charges or other reasonable costs and expenses whatsoever incurred by the
Agent or any Bank in connection with any payment made by the Agent or any
Bank under, or pursuant to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent for the benefit of the
Banks and the Agent as cash collateral for all Reimbursement Obligations,
and
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(c) upon the termination of the Total Commitment or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with ss.14, an amount equal to the then Maximum Drawing Amount
of all Letters of Credit, which amount shall be held by the Agent for the
benefit of the Banks and the Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining unpaid by
the Borrower under this ss.5.2 at any time from the date such amounts become due
and payable (whether as stated in this ss.5.2, by acceleration or otherwise)
until payment in full (whether before or after judgment) shall be payable to the
Agent on demand at the rate specified in ss.6.10 for overdue principal of the
Loans.
5.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Agent shall
notify the Borrower of the date and amount of the draft presented or demand for
payment and of the date and time when it expects to pay such draft or honor such
demand for payment. If the Borrower fails to reimburse the Agent as provided in
ss.5.2 on or before the date that such draft is paid or other payment is made by
the Agent, the Agent may at any time thereafter notify the Banks of the amount
of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m. (Boston
time) on the Business Day next following the receipt of such notice, each Bank
shall make available to the Agent, at its Head Office, in immediately available
funds, such Bank's Commitment Percentage of such Unpaid Reimbursement
Obligation, together with an amount equal to the product of (i) the average,
computed for the period referred to in clause (iii) below, of the weighted
average interest rate paid by the Agent for federal funds acquired by the Agent
during each day included in such period, TIMES (ii) the amount equal to such
Bank's Commitment Percentage of such Unpaid Reimbursement Obligation, TIMES
(iii) a fraction, the numerator of which is the number of days that elapse from
and including the date the Agent paid the draft presented for honor or otherwise
made payment up to but excluding the date on which such Bank's Commitment
Percentage of such Unpaid Reimbursement Obligation shall become immediately
available to the Agent, and the denominator of which is 365. The responsibility
of the Agent to the Borrower and the Banks shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
5.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this ss.5 shall
be absolute and unconditional under any and all circumstances and irrespective
of the occurrence of any Default or Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which the Borrower
may have or have had against the Agent, any Bank or any beneficiary of a Letter
of Credit. The Borrower further agrees with the Agent
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and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under ss. 5.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Agent and the Banks shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. The Borrower agrees that any action taken or omitted by
the Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Agent or any
Bank to the Borrower.
5.5. RELIANCE BY ISSUER. To the extent not inconsistent with ss. 5.4, the
Agent shall be entitled to rely, and shall be fully protected in relying upon,
any Letter of Credit, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing or
refusing to take any action requested by the Majority Banks unless it shall
first have received such advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Credit Agreement in accordance with a request of the Majority
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon the Banks and all future holders of the Notes or of a
Letter of Credit Participation.
5.6. LETTER OF CREDIT FEE. The Borrower shall, on the date of issuance or
any extension or renewal of any Letter of Credit and at such other time or times
as such charges are customarily made by the Agent, pay a fee (in each case, a
"Letter of Credit Fee") to the Agent for the accounts of the Banks in respect of
each Letter of Credit equal to the Applicable Rate (as defined below) per annum
of the face amount of such Letter of Credit, PLUS the Agent's customary issuance
fee (which fee shall be solely for the account of the Agent). For the purposes
of this ss.5.6, "Applicable Rate" shall mean the percentage rate per annum then
in effect that the Borrower would pay with respect to Eurodollar Rate Loans as
the Applicable Eurodollar Rate Margin as set forth in ss.2.5 of this Credit
Agreement.
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6. CERTAIN GENERAL PROVISIONS.
6.1. FEES. The Borrower shall pay to the Agent on the Closing Date certain
fees as previously agreed to in writing by and between the Borrower and the
Agent. The Borrower shall pay to the Agent annually in advance, for the Agent's
own account, a non refundable Agent's fee in the amount previously agreed to in
writing by and between the Borrower and the Agent.
6.2. FUNDS FOR PAYMENTS.
6.2.1. PAYMENTS TO AGENT. All payments of principal, interest,
Reimbursement Obligations, Letter of Credit Fees, commitment fees and any
other amounts due hereunder or under any of the other Loan Documents shall
be made to the Agent, for the respective accounts of the Banks and the
Agent, at the Agent's Head Office or at such other location in the Boston,
Massachusetts, area that the Agent may from time to time designate, in each
case in immediately available funds.
6.2.2. NO OFFSET, ETC. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof
or taxing or other authority therein unless the Borrower is compelled by
law to make such deduction or withholding. If any such obligation is
imposed upon the Borrower with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrower will pay
to the Agent, for the account of the Banks or (as the case may be) the
Agent, on the date on which such amount is due and payable hereunder or
under such other Loan Document, such additional amount in Dollars as shall
be necessary to enable the Banks or the Agent to receive the same net
amount which the Banks or the Agent would have received on such due date
had no such obligation been imposed upon the Borrower. The Borrower will
deliver promptly to the Agent certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made
by the Borrower hereunder or under such other Loan Document.
6.2.3. COMPUTATIONS. All computations of interest on the Loans and of
commitment fees and Letter of Credit Fees shall, unless otherwise expressly
provided herein, be based on a 365-day or 366-day year, as the case may be,
and paid for the actual number of days elapsed; PROVIDED, HOWEVER that
interest on Eurodollar Rate Loans shall be based on a 360-day year. Except
as otherwise provided in the definition of the term "Interest Period" with
respect to Eurodollar Rate Loans, whenever a payment hereunder or under any
of the other Loan Documents becomes due on a day that is not a Business
Day, the due date for such payment shall be extended to the next succeeding
Business Day, and interest shall
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accrue during such extension. The outstanding amount of the Loans as
reflected on the Note Records from time to time shall be considered correct
and binding on the Borrower unless within five (5) Business Days after
receipt of any notice by the Agent or any of the Banks of such outstanding
amount, the Borrower shall notify the Agent or such Bank to the contrary.
All agreements between the Borrower and any guarantor and the Banks are
hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of the indebtedness evidenced
hereby or otherwise, shall the amount paid or agreed to be paid to any Bank
for the use or the forbearance of the indebtedness evidenced hereby exceed
the maximum permissible under applicable law. As used herein, the term
"applicable law" shall mean the law in effect as of the date hereof
provided, however, that in the event there is a change in the law which
results in a higher permissible rate of interest, then this Credit
Agreement shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Borrower
and the Banks in the execution, delivery and acceptance of this Credit
Agreement to contract in strict compliance with the laws of the
Commonwealth of Massachusetts from time to time in effect. If, under or
from any circumstances whatsoever, fulfillment of any provision hereof or
of any of the Loan Documents at the time of performance of such provision
shall be due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or
from circumstances whatsoever a Bank should ever receive as interest an
amount which would exceed the highest lawful rate, such amount which would
be excessive interest shall be applied to the reduction of the principal
balance evidenced hereby and not to the payment of interest.
6.3. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine that adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate that would otherwise determine the rate of
interest to be applicable to any Eurodollar Rate Loan during any Interest
Period, the Agent shall forthwith give notice of such determination (which shall
be conclusive and binding on the Borrower and the Banks) to the Borrower and the
Banks. In such event (i) any Loan Request or Conversion Request with respect to
Eurodollar Rate Loans shall be automatically withdrawn and shall be deemed a
request for Base Rate Loans, (ii) each Eurodollar Rate Loan will automatically,
on the last day of the then current Interest Period thereof, become a Base Rate
Loan, and (iii) the obligations of the Banks to make Eurodollar Rate Loans shall
be suspended until the Agent determines that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent shall so notify the
Borrower and the Banks.
6.4. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or change in the
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interpretation or application thereof shall make it unlawful for any Bank to
make or maintain Eurodollar Rate Loans, such Bank shall forthwith give notice of
such circumstances to the Borrower and the other Banks and thereupon (i) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Bank's Loans then outstanding as Eurodollar Rate Loans, if any, shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurodollar Rate Loans or within such earlier period as
may be required by law. The Borrower hereby agrees promptly to pay the Agent for
the account of such Bank, upon demand by such Bank, any additional amounts
necessary to compensate such Bank for any costs incurred by such Bank in making
any conversion in accordance with this ss.6.5, including any interest or fees
payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Loans hereunder.
6.5. ADDITIONAL COSTS, ETC. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Bank or
the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Loans or deposits obtained to fund Loans or
Letters of Credit (other than taxes based upon or measured by the net
profit or income of such Bank or the Agent); or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on the Loans or any other amounts payable to any Bank or the
Agent under this Credit Agreement or the other Loan Documents; or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, assessment, liquidity, capital adequacy, or reserve or other
similar requirement (whether or not having the force of law) against assets
held by, or deposits in or for the account of, or loans by, or letters of
credit issued by, or commitments of an office of any Bank; or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, the Letters of Credit, the Loans, such Bank's Commitment, or any
class of loans, letters of credit or commitments of which any of the Loans,
the Letters of Credit, or such Bank's Commitment forms a part, and the
result of any of the foregoing is
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(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank or the Agent hereunder
on account of such Bank's Commitment, any Letter of Credit or any of
the Loans, or
(iii) to require such Bank or the Agent to make any payment or to
forego any interest or Reimbursement Obligation or other sum payable
hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon written demand
made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such
Bank or the Agent such additional amounts as will be sufficient to
compensate the Bank or the Agent for such additional cost, reduction,
payment or foregone interest, Reimbursement Obligation or other sum.
6.6. CAPITAL ADEQUACY. If after the date hereof any Bank or the Agent
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (ii) compliance by such Bank or the
Agent or any corporation controlling such Bank or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law and including any determination by such central bank or
other governmental authority that for purposes of capital adequacy requirements
the Commitments hereunder do not constitute commitments with an original
maturity of one year or less) of any such entity regarding capital adequacy, has
the effect of reducing the return on such Bank's or the Agent's commitment with
respect to any Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing policies with respect to
capital adequacy and assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the Agent to be material,
then such Bank or the Agent may notify the Borrower of such fact. To the extent
that the amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower agrees to pay such Bank or (as the case may be) the
Agent for the amount of such reduction in the return on capital as and when such
reduction is determined upon presentation by such Bank or (as the case may be)
the Agent of a certificate in accordance with ss. 6.8 hereof.
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Each Bank shall allocate such cost increases among its customers in good faith
and on an equitable basis.
6.7. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to ss.6.6 or 6.7 and a brief explanation of such amounts which
are due, submitted by any Bank or the Agent to the Borrower, shall be
conclusive, absent manifest error, that such amounts are due and owing.
6.8. INDEMNITY. The Borrower agrees to indemnify each Bank and to hold each
Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrower in payment of the principal amount of or any interest on
any Eurodollar Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrower in making a borrowing after the Borrower has given (or
is deemed to have given) a Loan Request or a Conversion Request relating thereto
in accordance with ss.2.6 or ss.2.7 or (iii) the making of any payment of a
Eurodollar Rate Loan or the making of any conversion of any such Loan to a Base
Rate Loan on a day that is not the last day of the applicable Interest Period
with respect thereto, including interest or fees payable by such Bank to lenders
of funds obtained by it in order to maintain any such Loans.
6.9. OVERDUE AMOUNTS. Overdue principal and (to the extent permitted by
applicable law) interest on the Loans and all other overdue amounts payable
hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to two
percent (2%) above the Base Rate until such amount shall be paid in full (after
as well as before judgment).
7. SECURITY AND GUARANTIES.
7.1. SECURITY OF BORROWER. The Obligations shall be secured by a perfected
first priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in all of the assets of the Borrower (other than
Transferred Assets and the assets which have been transferred pursuant to, or
are subject to a security interest under, any Sale Agreements existing as of the
Closing Date) whether now owned or hereafter acquired, and a pledge of and
perfected first priority lien on all of the issued and outstanding shares of
ACFC pursuant to the terms of the Security Documents to which the Borrower is a
party.
7.2. GUARANTY AND SECURITY OF ACFC. The Obligations shall also be
guaranteed pursuant to the terms of the Guaranty. The obligations of ACFC under
the Guaranty shall be in turn secured by a perfected first priority security
interest (subject only to Permitted Liens entitled to priority under applicable
law) in all of the assets of ACFC, whether now owned or hereafter acquired,
pursuant to the terms of the Security Documents to which ACFC is a party.
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8. REPRESENTATIONS AND WARRANTIES.
The Borrower and ACFC each represents and warrants to the Banks and the
Agent as follows:
8.1. CORPORATE AUTHORITY.
8.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower and its
Subsidiaries (i) is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation, (ii) has all
requisite corporate power to own its property and conduct its business as
now conducted and as presently contemplated, and (iii) is in good standing
as a foreign corporation and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a failure
to be so qualified would not have a materially adverse effect on the
business, assets or financial condition of the Borrower or its Subsidiaries
taken as a whole.
8.1.2. AUTHORIZATION. The execution, delivery and performance of this
Credit Agreement and the other Loan Documents to which the Borrower or any
of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the corporate authority of
such Person, (ii) have been duly authorized by all necessary corporate
proceedings, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which
the Borrower or any of its Subsidiaries is subject or any judgment, order,
writ, injunction, license or permit applicable to the Borrower or any of
its Subsidiaries and (iv) do not conflict with any provision of the
corporate charter or bylaws of, or any agreement or other instrument
binding upon, the Borrower or any of its Subsidiaries.
8.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
8.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by the
Borrower and any of its Subsidiaries of this Credit Agreement and the other Loan
Documents to which the Borrower or any of its Subsidiaries is or is to become a
party and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any governmental agency or authority
other than those already obtained except to
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the extent financing statements are required to be filed to perfect the security
interest granted pursuant to the Security Documents.
8.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 8.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
8.4. FINANCIAL STATEMENTS AND PROJECTIONS.
8.4.1. FINANCIAL STATEMENTS. There has been furnished to the Agent a
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, and a consolidated statement of income for the fiscal
year then ended, certified by the Borrower's independent certified public
accountants. Such balance sheet and statement of income have been prepared
in accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrower as at the close of business
on the date thereof and the results of operations for the fiscal year then
ended. Other than as set forth on SCHEDULE 8.4.1, there are no contingent
liabilities of the Borrower or any of its Subsidiaries as of such date
involving material amounts and of a nature customarily reflected on a
balance sheet in accordance with generally accepted accounting principles
consistently applied, known to the officers of the Borrower not disclosed
in said balance sheet and the related notes thereto.
8.4.2. PROJECTIONS. The projections of the annual operating budgets of
the Borrower and its Subsidiaries on a consolidated basis, balance sheets
and cash flow statements for the 2000 and 2001 fiscal years, copies of
which have been delivered to each Bank, disclose all assumptions made with
respect to general economic, financial and market conditions used in
formulating such projections. To the knowledge of the Borrower or any of
its Subsidiaries, no facts exist that (individually or in the aggregate)
would result in any material change in any of such projections. The
projections are based upon reasonable estimates and assumptions, have been
prepared on the basis of the assumptions stated therein and reflect the
reasonable estimates of the Borrower and its Subsidiaries of the results of
operations and other information projected therein.
8.5. NO MATERIAL ADVERSE CHANGES, ETC. Since the Balance Sheet Date there
has occurred no materially adverse change in the financial condition or business
of the Borrower and its Subsidiaries as shown on or reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, or the consolidated statement of income for the fiscal year
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then ended, other than changes in the ordinary course of business that have not
had any materially adverse effect in the aggregate on the business or financial
condition of the Borrower and its Subsidiaries. Since the Balance Sheet Date,
the Borrower has not made any Distribution.
8.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrower and its
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
8.7. LITIGATION. Other than as set forth on SCHEDULE 8.7, there are no
actions, suits, proceedings or investigations of any kind pending, or to the
knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries before any court, tribunal or administrative agency or board that,
if adversely determined, might, either in any case or in the aggregate,
materially adversely affect the properties, assets, financial condition or
business of the Borrower and its Subsidiaries, taken as a whole, or materially
impair the right of the Borrower and its Subsidiaries, considered as a whole, to
carry on business substantially as now conducted by them, or result in any
substantial liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the consolidated balance sheet of the Borrower,
or which question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto. For
purposes of this ss.8.7, any counterclaim by a Customer in response to a
collection action shall not be deemed to be material unless such counterclaim is
reasonably likely to result in an uninsured liability in excess of $500,000.
8.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor any of
its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries, taken as a
whole. Neither the Borrower nor its Subsidiaries is a party to any contract or
agreement that has or is expected, in the judgment of the Borrower's officers,
to have any materially adverse effect on the business of the Borrower and its
Subsidiaries, taken as a whole.
8.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower nor
any of its Subsidiaries is in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could materially and adversely affect the financial condition,
properties or business of the Borrower or any of its Subsidiaries.
8.10. TAX STATUS. The Borrower and its Subsidiaries (i) have made or filed
(or timely filed an extension to file) all federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to
which
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any of them is subject or an extension to file has been timely filed, (ii) have
paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (iii) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
8.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
is continuing.
8.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower nor
any of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
8.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of the Borrower or any of its Subsidiaries or rights
thereunder.
8.14. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Agent's security interest in the Collateral. The
Collateral and the Agent's rights with respect to the Collateral are not subject
to any setoff, claims, withholdings or other defenses other than Permitted
Liens. The Borrower and ACFC are the owners of the Collateral free from any
lien, security interest, encumbrance and any other claim or demand, except for
Permitted Liens.
8.15. CERTAIN TRANSACTIONS. Except for arm's length transactions pursuant
to which the Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of the Borrower or any of its Subsidiaries is presently a party to any
transaction with the Borrower or any of its Subsidiaries (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
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knowledge of the Borrower, any corporation, partnership, trust or other entity
in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner.
8.16. EMPLOYEE BENEFIT PLANS.
8.16.1. IN GENERAL. Each Employee Benefit Plan has been maintained and
operated in compliance in all material respects with the provisions of
ERISA and, to the extent applicable, the Code, including but not limited to
the provisions thereunder respecting prohibited transactions. Neither the
Borrower nor any ERISA Affiliate maintains or contributes to any Guaranteed
Pension Plan.
8.16.2. TERMINABILITY OF WELFARE PLANS. Under each Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, no benefits are due unless the event giving
rise to the benefit entitlement occurs prior to plan termination (except as
required by Title I, Part 6 of ERISA). The Borrower or an ERISA Affiliate,
as appropriate, may terminate each such Plan at any time (or at any time
subsequent to the expiration of any applicable bargaining agreement) in the
discretion of the Borrower or such ERISA Affiliate without liability to any
Person.
8.16.3. GUARANTEED PENSION PLANS. Neither the Borrower or any ERISA
Affiliate maintains or contributes to any Guaranteed Pension Plan.
8.16.4. MULTIEMPLOYER PLANS. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under ss.4201 of ERISA or as a
result of a sale of assets described in ss.4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
ss.4241 or ss.4245 of ERISA or that any Multiemployer Plan intends to
terminate or has been terminated under ss.4041A of ERISA.
8.17. REGULATIONS U AND X. The proceeds of the Loans shall be used for
working capital purposes. No portion of any Loan which is to be used for the
purpose of purchasing or carrying any "margin security" or "margin stock" will
be secured directly or indirectly by "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Parts 221 and 224. No portion of the proceeds of any
Loans is to be used, and no portion of any Letter of Credit is to be obtained,
for the purpose of (a) knowingly purchasing, or providing credit support for the
purchase of, Ineligible Securities from a Section 20 Subsidiary during any
period in which such Section 20 Subsidiary makes a market in such Ineligible
Securities, (b) knowingly purchasing, or providing credit support for the
purchase of, during the underwriting or placement period, any Ineligible
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Securities being underwritten or privately placed by a Section 20 Subsidiary, or
(c) making, or providing credit support for the making of, payments of principal
or interest on Ineligible Securities underwritten or privately placed by a
Section 20 Subsidiary and issued by or for the benefit of the Borrower or any
Subsidiary or other Affiliate of the Borrower.
8.18. ENVIRONMENTAL COMPLIANCE. The Borrower has taken all necessary steps
to investigate the past and present condition and usage of the Real Estate and
the operations conducted thereon and, based upon such diligent investigation,
has determined that:
(a) none of the Borrower or any of its Subsidiaries is in violation,
or alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or
local statute, regulation, ordinance, order or decree relating to health,
safety or the environment (hereinafter "Environmental Laws"), which
violation would have a material adverse effect on the environment or the
business, assets or financial condition of the Borrower or any of its
Subsidiaries;
(b) neither the Borrower nor any of its Subsidiaries has received
notice from any third party including, without limitation: any federal,
state or local governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection Agency ("EPA) as a
potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that any
hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous
substances as defined by 42 U.S.C. ss.9601(14), any pollutant or
contaminant as defined by 42 U.S.C. ss.9601(33) and any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by
any Environmental Laws ("Hazardous Substances") which any one of them has
generated, transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted or has
ordered that the Borrower or any of its Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances;
(c) except as set forth on SCHEDULE 8.18 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
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storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Substances is located on any portion of
the Real Estate; (ii) in the course of any activities conducted by the
Borrower or any of its Subsidiaries, no Hazardous Substances have been
generated or are being used on the Real Estate except in accordance with
applicable Environmental Laws; (iii) there have been no releases (i.e. any
past or present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from the
properties of the Borrower or its Subsidiaries, which releases would have a
material adverse effect on the value of any of the Real Estate or adjacent
properties or the environment; (iv) to the best of the Borrower's
knowledge, there have been no releases on, upon, from or into any real
property in the vicinity of any of the Real Estate which, through soil or
groundwater contamination, may have come to be located on, and which would
have a material adverse effect on the value of, the Real Estate; and (v) in
addition, any Hazardous Substances that have been generated on any of the
Real Estate have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required
under applicable Environmental Laws, which transporters and facilities have
been and are, to the best of the Borrower's knowledge, operating in
compliance with such permits and applicable Environmental Laws; and
(d) none of the Borrower and its Subsidiaries, or any of the Real
Estate is subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby or to the
effectiveness of any other transactions contemplated hereby.
8.19. SUBSIDIARIES, ETC. The Securitization Subsidiaries and ACFC are the
only Subsidiaries of the Borrower. Except as set forth on SCHEDULE 8.19 hereto,
neither the Borrower nor any Subsidiary of the Borrower is engaged in any joint
venture or partnership with any other person. Each of the Securitization
Subsidiaries and ACFC have no Subsidiaries.
8.20. BANK ACCOUNTS. SCHEDULE 8.20 sets forth the account numbers and
location of all bank accounts of the Borrower or any of its Subsidiaries;
PROVIDED, HOWEVER, that the Borrower, ACFC and the Securitization Subsidiaries
may maintain bank accounts not listed on SCHEDULE 8.20 so long as the aggregate
amount contained in such accounts does not at any time exceed $200,000.
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8.21. ELIGIBLE ACCOUNTS RECEIVABLE, EQUIPMENT AND CONTRACTS. Each Account
Receivable included in Eligible Accounts Receivable meets the following
criteria:
(a) Either the Borrower or ACFC is the sole legal owner of the
Account Receivable, the Contracts and the Equipment (or will have a first
priority security interest in the Equipment), free and clear of all liens
other than Permitted Liens.
(b) Each of the Contracts is a legal, valid and binding full recourse
obligation of the Obligor thereunder, enforceable by the Borrower or ACFC
and their respective assigns against such Obligor in accordance with the
terms thereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally and by any and all applicable
requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending and equal credit opportunity laws
applicable to each Contract have been complied with.
(c) The Borrower and ACFC, and to the best of their respective
knowledge, the other parties to such Contract, had all requisite authority
and capacity to enter into such Contract; and no Obligor has been released,
in whole or in part, from any of its obligations in respect of any
Contract.
(d) Except as enforcement may be limited by bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and by equitable principles, the obligation of
each Obligor to pay all amounts owed under each of the Contracts to which
such Obligor is a party throughout the term thereof is and will be
unconditional, without any right of set-off or counterclaim or any defense
by such Obligor, and without regard to any event affecting the Equipment,
if any, subject to such Contract, any claim of such Obligor against the
Borrower or ACFC or any change in circumstance of such Obligor or any other
circumstance whatsoever.
(e) There will be no facts or circumstances existing as of the
relevant time which give rise to any right of rescission, offset,
counterclaim or defense, including the defense of usury, to the obligations
of any Obligor, including the obligation of such Obligor to pay all amounts
due thereunder, with respect to any Contract to which such Obligor is a
party; and neither the operation of any of the terms of any Contract nor
the exercise of any right thereunder will render such Contract
unenforceable in whole or in part or subject to any right of rescission,
offset, counterclaim or defense, including the defense of usury (other than
limitations on enforcement as a result of bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles), and no
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such right of rescission, offset, counterclaim or defense has been asserted
with respect thereto.
(f) No Contract, and no provision of any Contract, has been amended,
terminated, altered, waived or modified since inception in any respect that
is adverse to the interests of the Borrower or ACFC except for reissues
that are consistent with Borrower's past practices, no Contract has been
satisfied, canceled or subordinated, in whole or in part, or rescinded, nor
has any instrument been executed that would effect any such satisfaction,
cancellation, subordination or rescission, except for Contracts that have
been prepaid in full.
(g) No Obligor has been released by the Borrower or ACFC from the
terms of the related Contract.
(h) Each Contract was originated or acquired in (1) in the Borrower's
ordinary course of business, in accordance with the Borrower's Credit
Policy or (2) in ACFC's ordinary course of business, in accordance with
ACFC's Credit Policy. Each Contract is of a type customarily in use in the
leasing or financing business and has not been found, in the Agent's
reasonable judgment, to be unacceptable.
(i) Each Obligor is a resident of the United States of America and is
not the Borrower or ACFC or an Affiliate of the Borrower or ACFC.
(j) Each Contract requires the Obligor to assume all risk of loss or
malfunction of the related Equipment, if any. Each Contract requires the
Obligor to pay all sales, use, property, excise and other similar taxes
imposed on or with respect to the related Equipment, if any. No Contract
permits early termination or prepayment, unless the amount required to be
paid by or on behalf of Obligor in respect thereof is equal to or greater
than the applicable termination amount as set forth in such Contract. No
Contract provides for the substitution, exchange or addition of any
Equipment subject thereto, if any, which would result in any reduction of
the amount of payments or change the timing of payments due under such
Contract.
(k) There are no proceedings or investigations pending against the
Borrower or ACFC or, to the best of their respective knowledge, threatened
or otherwise pending before any court, regulatory body, administrative
agency or other tribunal or government instrumentality (A) asserting the
invalidity or unenforceability of any Contract, (B) seeking to prevent
payment and performance of any Contract, or (C) seeking any determination
or ruling that might, in the aggregate, adversely and materially affect the
validity or enforceability of any Contract.
(l) Each of the Borrower and ACFC has duly performed all material
obligations on its part required to be performed by it under or in
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connection with each Contract, and has done nothing to materially impair
its rights thereunder.
(m) Each Contract is either an "account" (as defined in Section 9-106
of the UCC) or "chattel paper" (as defined in Section 9-105 of the UCC) or
an "instrument" (as defined in Section 9-105 of the UCC). If the Contract
is chattel paper, then (i) there is only one counterpart of the Contract
that constitutes "chattel paper" for purposes of Section 9-105(b) and 9-308
of the UCC and (ii) either the Borrower or ACFC, as applicable, has a first
priority security interest in the Equipment that is the subject of the
Contract.
(n) Each Contract requires the related Obligor to maintain the
related Equipment, if any, in good and workable order. Each Contract
requires the related Obligor to obtain and maintain physical damage
insurance on the Equipment subject thereto, if any, and to name the lessor
or lender thereunder as loss payee and an additional insured with respect
thereto. The Agent is named as loss payee under all of the Borrower's or
ACFC's physical damage insurance on the Equipment, if any (other than
insurance of the Borrower or ACFC maintained under Borrower's or ACFC's
lessee insurance program, as the case may be, pursuant to equipment leases
with its lessees). To the best of the Borrower's and ACFC's knowledge, the
Equipment, if any, was properly delivered to each Obligor in good repair,
without defects and in satisfactory order and the related Equipment, if
any, is in good operating condition and repair. To the best of the
Borrower's and ACFC's knowledge, the related Equipment, if any was accepted
by the Obligor after reasonable opportunity to inspect and test the same
and no Obligor has informed the Borrower or ACFC of any defects therein.
(o) No Contract constitutes a "consumer lease" under the UCC.
(p) The Borrower and ACFC have marked their computer records to
reflect the interest granted to the Agent hereunder.
(q) Each Contract permits the rights with respect to such Contract,
and all collateral related thereto, to be assigned by either the Borrower
or ACFC, as applicable, without the consent of any Person.
(r) The Borrower or ACFC, as applicable, shall have taken actions
with respect to the collateral in respect of each Contract related to any
Account Receivable which has an outstanding balance equal to or greater
than $5,000 as is necessary to insure that the Borrower or ACFC, as
applicable, maintains, as against the Obligor thereunder a perfected
security interest in any collateral of the Obligor relating thereto free
and clear of adverse claims, or in the case of any Lease, to ensure that
the Borrower or ACFC, as the case may be, would maintain such a perfected
security interest in the event that a court or other Person were to
determine that such Lease purported to transfer to the Obligor an
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ownership (rather than a leasehold) interest in the Equipment subject
thereto.
(s) The Borrower or ACFC, as applicable, shall have taken actions
with respect to the Accounts Receivable to ensure that the Agent, for the
benefit of itself and the Banks, has a priority perfected security interest
in such Accounts Receivable free and clear of any adverse claims,
including, without limitation, delivery of any applicable Contract Files.
8.22. SUBORDINATED DEBT. The Obligations constitute "Secured Portfolio
Debt" under the terms of the Indenture and are entitled to the full benefit of
the subordination provisions contained in Article XI of the Indenture.
8.23. YEAR 2000 COMPLIANCE. The Borrower has reviewed all material areas
within its business and operations which could be adversely affected by, and has
developed and implemented a program to address on a timely basis, the Year 2000
Compliance. Based on such review and program, the Year 2000 Compliance should
not have a material adverse effect on its business and operations.
9. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower and ACFC each covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligation to
issue, extend or renew any Letters of Credit hereunder:
9.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans and the commitment fees, the
Letter of Credit Fees and the Agent's fee provided for in this Credit Agreement,
all in accordance with the terms of this Credit Agreement and the Notes.
9.2. MAINTENANCE OF OFFICE. The Borrower will, and will cause each of its
Subsidiaries (other than ACFC) to maintain its chief executive office in Boston,
Massachusetts or at such other place in the United States of America as the
Borrower shall designate upon written notice to the Agent, where notices,
presentations and demands to or upon the Borrower and its Subsidiaries in
respect of the Loan Documents may be given or made. ACFC will maintain its chief
executive office in West Hartford, Connecticut, or at such other place in the
United States of America as ACFC shall designate upon written notice to the
Agent, where notices, presentations and demands to or upon ACFC in respect of
the Loan Documents may be given or made.
9.3. RECORDS AND ACCOUNTS. The Borrower will (i) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with generally
accepted accounting principles and (ii) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation, depletion, obsolescence
and
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amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves in accordance with generally accepted
accounting principles.
9.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower will
deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries and the
consolidating balance sheet of the Borrower and its Subsidiaries, each as
at the end of such year, and the related consolidated statement of income
and consolidated statement of cash flow and consolidating statement of
income and consolidating statement of cash flow for such year, each setting
forth in comparative form the figures for the previous fiscal year and all
such consolidated and consolidating statements to be in reasonable detail,
prepared in accordance with generally accepted accounting principles, the
consolidated statements certified without qualification by Deloitte &
Touche or by other independent certified public accountants satisfactory to
the Agent;
(b) as soon as practicable, but in any event not later than
forty-eight (48) days after the end of each of the first three (3) fiscal
quarters of the fiscal year of the Borrower, copies of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries and the
unaudited consolidating balance sheet of the Borrower and its Subsidiaries,
each as at the end of such quarter, and the related consolidated statement
of income and consolidated statement of cash flow and consolidating
statement of income and consolidating statement of cash flow for the
portion of the Borrower's fiscal year then elapsed, all in reasonable
detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial or
accounting officer of the Borrower that the information contained in such
financial statements fairly presents the financial position of the Borrower
and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officer of the Borrower in substantially
the form of EXHIBIT D hereto and setting forth in reasonable detail
computations evidencing compliance with the applicable covenants contained
in ss.9 and (if applicable) reconciliations to reflect changes in generally
accepted accounting principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of the Borrower;
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(e) within three (3) Business Days after the end of each calendar
month, a Borrowing Base Report setting forth the Borrowing Base as at the
end of such month; PROVIDED, HOWEVER, that either the Borrower or the Agent
may elect to convert to weekly reporting by giving the Agent or the
Borrower, as the case may be, thirty (30) days prior written notice and may
re-convert to monthly reporting by giving the Agent or the Borrower, as the
case may be, thirty (30) days prior written notice;
(f) within fifteen (15) days after the end of each calendar month, an
Accounts Receivable aging report;
(g) from time to time upon request of the Agent, projections of the
Borrower and its Subsidiaries updating those projections delivered to the
Banks and referred to in ss.8.4.2 or, if applicable, updating any later
such projections delivered in response to a request pursuant to this
ss.9.4(g);
(h) within 5 days of receipt of the same by the Borrower copies of the
monthly settlement reports under the Bravo Facility Documents or the
Capital Facility Documents and from time to time if the Agent or any Bank
so requests copies of (i) other reports delivered under the Bravo Facility
Documents or the Capital Facility Documents and (ii) other financial data
and information with respect to the Borrower or any of its Subsidiaries;
(i) within fifteen (15) days after the Agent's request, the monthly
management report for ACFC;
(j) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of ACFC, copies of any
reports prepared by management with respect to the financial conditions and
results of operation of ACFC;
(k) as soon as practicable, but in any event not later than
forty-eight (48) days after the end of each of the first three fiscal
quarters of the fiscal year of ACFC, copies of any reports prepared by
management with respect to the financial condition and results of operation
of ACFC; and
(l) from time to time, such other information regarding the financial
condition and results of operation of the Borrower or ACFC as any of the
Banks or the Agent shall reasonably request.
9.5. NOTICES.
9.5.1. DEFAULTS. The Borrower will promptly notify the Agent and each
of the Banks in writing of the occurrence of any Default or Event of
Default. If any Person shall give any notice or take any other action in
respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or in respect of a claimed default
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under any other note, evidence of indebtedness, indenture or other
obligation to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal or surety, if such
claimed default is material to the business or the financial condition of
the Borrower, the Borrower shall forthwith give written notice thereof to
each of the Banks, describing the notice or action and the nature of the
claimed default.
9.5.2. ENVIRONMENTAL EVENTS. The Borrower will promptly give notice to
the Agent (i) of any violation of any Environmental Law that the Borrower
or any of its Subsidiaries reports in writing or is reportable by such
Person in writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency and
(ii) upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency of
potential environmental liability, or any federal, state or local
environmental agency or board, that has the potential to materially affect
the assets, liabilities, financial conditions or operations of the Borrower
or any of its Subsidiaries or the Agent's security interests pursuant to
the Security Documents.
9.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The Borrower will,
immediately upon becoming aware thereof, notify the Agent in writing of any
setoff, claims, withholdings or other defenses in excess of $500,000 in the
aggregate to which any of the Collateral, or the Agent's rights with
respect to the Collateral, are subject.
9.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and will
cause each of its Subsidiaries to, give notice to the Agent in writing
within fifteen (15) days of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings affecting
the Borrower or any of its Subsidiaries or to which the Borrower or any of
its Subsidiaries is or becomes a party involving an uninsured claim against
the Borrower or any of its Subsidiaries that could reasonably be expected
to have a materially adverse effect on the Borrower or any of its
Subsidiaries and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its Subsidiaries to,
give notice to the Agent, in writing, in form and detail satisfactory to
the Agent, within ten (10) days of any judgment not covered by insurance,
final or otherwise, against the Borrower or any of its Subsidiaries in an
amount in excess of $500,000.
9.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and those of its
Subsidiaries. It (i) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order, reasonable wear and tear excepted, and supplied with all necessary
equipment, (ii) will
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cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times, and (iii) will, and will cause each of
its Subsidiaries to, continue to engage primarily in the businesses now
conducted by them and in related businesses; PROVIDED that nothing in this
ss.9.6 shall prevent the Borrower from discontinuing the operation and
maintenance of any of its properties or those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that do not in the aggregate materially adversely
affect the business of the Borrower and its Subsidiaries on a consolidated
basis.
9.7. INSURANCE. The Borrower will, and will cause each of its Subsidiaries
to, maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and contingencies
as shall be in accordance with the general practices of businesses engaged in
similar activities in similar geographic areas; PROVIDED, HOWEVER, that the
Borrower shall not be required to maintain such insurance with respect to
Equipment which it leases or transfers to third parties pursuant to an equipment
lease or a conditional sales agreement to the extent that the lessee thereon
maintains such insurance pursuant to the terms of its equipment lease or
conditional sales agreement with the Borrower. Such insurance shall be in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent and in accordance with the terms of ss.10.1 of the
Security Agreements.
9.8. TAXES. The Borrower will, and will cause each of its Subsidiaries to,
duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
(other than taxes, assessments and other governmental charges imposed by foreign
jurisdictions that in the aggregate are not material to the business or assets
of the Borrower on an individual basis or of the Borrower and its Subsidiaries
on a consolidated basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; PROVIDED that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED FURTHER that the Borrower
and each Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor.
9.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
9.9.1. GENERAL. The Borrower shall permit the Banks, through the Agent
or any of the Banks' other designated representatives, to visit and inspect
any of the properties of the Borrower or any of its
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Subsidiaries to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrower and its
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or any
Bank may reasonably request.
9.9.2. COLLATERAL REPORTS. No more frequently than once each calendar
quarter, or more frequently as determined by the Agent if an Event of
Default shall have occurred and be continuing, upon the request of the
Agent, the Borrower will obtain and deliver to the Agent a report of an
independent collateral auditor satisfactory to the Agent (which may be
affiliated with any of the Banks) with respect to the Accounts Receivable
included in the Borrowing Base, which report shall indicate whether or not
the information set forth in the Borrowing Base Report most recently
delivered is accurate and complete in all material respects based upon a
review by such auditors of the Accounts Receivable (including verification
with respect to the amount, aging, identity and credit of the respective
Customers and the billing practices of the Borrower or its applicable
Subsidiary) and inventory (including verification as to the value, location
and respective types). All such collateral value reports shall be conducted
and made at the expense of the Borrower; PROVIDED, HOWEVER, that the
liability of the Borrower for such expenses shall be limited to $25,000
during any fiscal year of the Borrower so long as no Event of Default has
occurred and is continuing.
9.9.3. COMMUNICATION WITH ACCOUNTANTS. The Borrower authorizes the
Agent and, if accompanied by the Agent, the Banks to communicate directly
with the Borrower's independent certified public accountants and authorizes
such accountants to disclose to the Agent and the Banks any and all
financial statements and other supporting financial documents and schedules
including copies of any management letter with respect to the business,
financial condition and other affairs of the Borrower or any of its
Subsidiaries, PROVIDED, HOWEVER, that a representative of Borrower shall be
entitled to be present at any meeting between or among the Agent, the Banks
and the Borrower's independent certified accountants. At the request of the
Agent, the Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this ss.9.9.3.
9.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The Borrower
will, and will cause each of its Subsidiaries to, comply with (i) the applicable
laws and regulations wherever its business is conducted, including all
Environmental Laws, (ii) the provisions of its charter documents and by-laws,
(iii) all agreements and instruments by which it or any of its properties may be
bound and (iv) all applicable decrees, orders, and judgments; PROVIDED, HOWEVER,
that a failure to do so shall not be deemed a Default or an Event of Default to
the extent that it would not be reasonably likely to have a
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material adverse effect on the business or financial condition of the Borrower
and its Subsidiaries, taken as a whole. If at any time while any Loan or Note is
outstanding or either Bank has any obligation to make Loans hereunder, any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower may fulfill any of its obligations hereunder, the Borrower
will immediately take or cause to be taken all reasonable steps within the power
of the Borrower to obtain such authorization, consent, approval, permit or
license and furnish the Banks with evidence thereof.
9.11. EMPLOYEE BENEFIT PLANS. The Borrower will (i) promptly upon request
of the Agent, furnish to the Agent a copy of the most recent actuarial statement
required to be submitted under ss.103(d) of ERISA and Annual Report, Form 5500,
with all required attachments, in respect of each Guaranteed Pension Plan and
(ii) promptly upon receipt or dispatch, furnish to the Agent any notice, report
or demand sent or received in respect of a Guaranteed Pension Plan under
ss.ss.302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect
of a Multiemployer Plan, under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
9.12. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans
solely for working capital purposes.
9.13. BANK ACCOUNTS. The Borrower will, and will cause each of its
Subsidiaries (other than the Securitization Subsidiaries) to, together with the
employees, agents and other Persons acting on behalf of the Borrower or such
Subsidiary, to cause all payments constituting proceeds of Accounts Receivable
or other Collateral to be paid into a lockbox designated by the Agent and, in
the event any such proceeds are received, by any of them to receive and hold in
trust for the Agent and the Banks all payments constituting proceeds of Accounts
Receivable or other Collateral which come into their possession or under their
control and, immediately upon receipt thereof, deposit such payments in the form
received, with any appropriate endorsements, in one of the accounts designated
as a central depository account on SCHEDULE 8.20.
9.14. CREDIT POLICIES. The Borrower will, and will cause ACFC to furnish to
the Agent a copy of the most recent Credit Policy of the Borrower and of ACFC
and to promptly furnish to the Agent any amendments to such Credit Policies. The
Borrower and ACFC shall comply in all material respects with the Credit Policy
and the ACFC Credit Policy, as applicable, in regard to each Account Receivable
and any related Contracts.
9.15. PERFECTED SECURITY INTEREST UNDER CONTRACTS. The Borrower or ACFC, as
applicable, shall take such actions with respect to the Equipment related to
each Contract with respect to any Account Receivable where such Equipment has a
fair market value equal to or greater than $5,000 as is necessary to ensure that
the Borrower or ACFC, as applicable, maintains against the Obligor thereunder a
perfected security interest in any collateral of the Obligor relating thereto
free and clear of adverse claims, or in the case of
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any Lease, to ensure that the Borrower or ACFC, as the case may be, would
maintain such a perfected security interest in the event that a court or other
Person were to determine that such Lease purported to transfer to the Obligor an
ownership (rather than a leasehold) interest in the Equipment subject thereto.
9.16. PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. The
Borrower and ACFC, as applicable, shall at its own expense timely and fully
perform and comply in all material respects, with all material provisions,
covenants and other promises required to be observed by it under the Contracts.
9.17. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents. Upon receipt of an affidavit of an
officer of a Bank as to the loss, theft, destruction or mutilation of a Note or
any other security document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of such Note
or other security document, the Borrower will issue, in lieu thereof, a
replacement note or other security document in the same principal amount thereof
and otherwise of like tenor.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower and ACFC each covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligations to
issue, extend or renew any Letters of Credit hereunder:
10.1. RESTRICTIONS ON INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Banks and the Agent arising under any of the
Loan Documents;
(b) current liabilities of the Borrower incurred in the ordinary
course of business not incurred through (i) the borrowing of money, or (ii)
the obtaining of credit except for credit on an open account basis
customarily extended and in fact extended in connection with normal
purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of ss. 9.8;
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(d) Indebtedness in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower
shall at the time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(f) Subordinated Debt;
(g) obligations under Capitalized Leases not exceeding $1,000,000 in
aggregate amount at any time outstanding;
(h) Indebtedness incurred in connection with the acquisition after the
date hereof of any real or personal property by the Borrower or any
Subsidiary of the Borrower, PROVIDED that the aggregate principal amount of
such Indebtedness of the Borrower and its Subsidiaries shall not exceed the
aggregate amount of $1,000,000 at any one time;
(i) Indebtedness existing on the date of this Credit Agreement and
listed and described on SCHEDULE 10.1 hereto;
(j) Indebtedness of Subsidiaries of the Borrower to the Borrower so
long as (a) such Subsidiary has made a guaranty in favor of the Banks and
the Agent pursuant to which such Subsidiary guaranties to the Banks and the
Agent the payment and performance of the Obligations in form and substance
satisfactory to the Banks and the Agent and (b) the obligations of such
Subsidiary (other than the Securitization Subsidiaries) under such guaranty
are in turn secured by a perfected first priority security interest
(subject only to the Permitted Liens entitled to priority under applicable
law) in all the assets of such Subsidiary, whether now owned or hereafter
acquired, pursuant to the terms of the Security Documents to which such
Subsidiary is a party;
(k) Indebtedness incurred by Capital pursuant to the Capital
Lease-Receivables Purchase Agreement;
(l) Indebtedness incurred by Bravo pursuant to the Bravo Facility
Documents; and
(m) Indebtedness incurred by the Borrower pursuant to the Sale
Agreements, PROVIDED THAT no Event of Default has occurred and is
continuing at the time such Indebtedness is incurred and PROVIDED FURTHER
that the sum of (i) aggregate outstanding principal amount of such
Indebtedness of the Borrower under such Sale Agreements and (ii) other
proceeds received by the Borrower under such Sale Agreements and
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not characterized as Indebtedness shall not exceed $50,000,000 at any time.
10.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not permit any
of its Subsidiaries to, (i) create or incur or suffer to be created or incurred
or to exist any lien, encumbrance, mortgage, pledge, charge, restriction or
other security interest of any kind upon any of its property or assets of any
character (including the capital stock of the Securitization Subsidiaries)
whether now owned or hereafter acquired, or upon the income or profits
therefrom; (ii) transfer any of such property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to payment of its general
creditors; (iii) acquire, or agree or have an option to acquire, any property or
assets upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; (iv) suffer to exist for a period of more than
thirty (30) days after the same shall have been incurred any Indebtedness or
claim or demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or (v) sell, assign, pledge or otherwise transfer any accounts,
contract rights, general intangibles, chattel paper or instruments, with or
without recourse; PROVIDED that the Borrower and any Subsidiary of the Borrower
may create or incur or suffer to be created or incurred or to exist:
(a) liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries of
the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims
for labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(d) liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted byss.10.1(d);
(e) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties, in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(f) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under
leases to which the Borrower or a Subsidiary of the Borrower is a party,
and other minor liens or encumbrances none of which in the opinion of the
Borrower interferes materially with the use of the property affected in
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the ordinary conduct of the business of the Borrower and its Subsidiaries,
which defects do not individually or in the aggregate have a materially
adverse effect on the business of the Borrower individually or of the
Borrower and its Subsidiaries on a consolidated basis;
(g) presently outstanding liens listed on SCHEDULE 10.2(G) hereto;
(h) purchase money security interests in or purchase money mortgages
on real or personal property, incurred in connection with the acquisition
of such property, which security interests or mortgages cover only the real
or personal property so acquired and secure Indebtedness permitted under
ss.10.1(h) hereof;
(i) liens in favor of the Agent for the benefit of the Banks and the
Agent under the Loan Documents;
(j) liens on "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Parts 221 and 224;
(k) liens granted by Capital in connection with the Capital
Lease-Receivables Purchase Agreement;
(l) liens granted by Bravo in connection with the Bravo Facility
Documents; and
(m) liens granted by the Borrower to financial institutions on assets
which are sold or otherwise transferred pursuant to the Sale Agreements.
10.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by the
Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances and
time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) (i) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Moody's
Investors Services, Inc., and not less than "A 1" if rated by Standard and
Poor's Ratings Group, and (ii) securities commonly known as "short-term
bank notes" issued by any Bank denominated in Dollars which at the
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time of purchase have been rated and the ratings for which are not less
than "P 2" if rated by Moody's Investors Services, Inc., and not less than
"A 2" if rated by Standard and Poor's Ratings Group;
(d) Investments existing on the date hereof and listed on SCHEDULE
10.3 hereto;
(e) Investments with respect to Indebtedness permitted by ss. 10.1(j)
so long as (i) such entities remain Subsidiaries of the Borrower, (ii) the
aggregate amount of incremental Investments made by the Borrower and its
subsidiaries in ACFC does not exceed $20,000,000 during the period of
twelve consecutive months commencing on the Closing Date and does not
exceed $15,000,000 thereafter;
(f) Investments consisting of the Guaranty, Investments by the
Borrower in Subsidiaries of the Borrower existing on the Closing Date,
Investments made pursuant to the Bravo Facility Documents or Investments in
connection with the Capital Lease-Receivables Purchase Agreement;
(g) Investments consisting of promissory notes received as proceeds of
asset dispositions permitted byss.10.5.2;
(h) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $750,000 in the aggregate at any time
outstanding;
(i) Investments not otherwise permitted by this ss.10.3, PROVIDED,
THAT the aggregate amount of such Investments shall not exceed $1,000,000;
and
(j) Investments consisting of purchase by the Borrower of the
Borrower's Common Stock, $0.01 par value, to the extent permitted pursuant
to Section 10.4.
PROVIDED, HOWEVER, that, with the exception of demand deposits referred to in
ss.10.3(b) and loans and advances referred to in ss.10.3(h), such Investments
will be considered Investments permitted by this ss.10.3 only if all actions
have been taken to the satisfaction of the Agent to provide to the Agent, for
the benefit of the Banks and the Agent, a first priority perfected security
interest in all of such Investments free of all encumbrances other than
Permitted Liens.
10.4. DISTRIBUTIONS. The Borrower will not make any Distributions; provided
that so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, the Borrower may purchase shares of the Borrower's
Common Stock, $0.01 par value, for an aggregate consideration for all such
purchases after December 1, 1996 not exceeding $5,000,000. The Borrower will not
permit ACFC to make any Distributions if a Default or Event
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of Default has occurred and is continuing at the time of the proposed
Distribution or would result therefrom.
10.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
10.5.1. MERGERS AND ACQUISITIONS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course of
business consistent with industry practices).
10.5.2. DISPOSITION OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets, other than the disposition of assets in the
ordinary course of business, consistent with industry practices, PROVIDED,
HOWEVER, that such disposition of assets in the ordinary course of business
shall not include a transfer of a material amount of Customer Receivables
without the prior written approval of the Banks. Notwithstanding the
foregoing provisions of this ss.10.5.2 and so long as no Event of Default
has occurred and is continuing, the Borrower and its Subsidiaries may
dispose of assets pursuant to the Bravo Purchase Agreement, the Capital
Lease-Receivables Purchase Agreement, the Bravo Lease Receivables Purchase
Agreement and the Sale Agreements; PROVIDED that the sum of (i) aggregate
principal amount of Indebtedness outstanding under the Sale Agreements plus
(ii) all other proceeds received by the Borrower under such Sale Agreements
and not characterized as Indebtedness shall not in any event exceed
$50,000,000.
10.6. SALE AND LEASEBACK. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
the Borrower or any Subsidiary of the Borrower shall sell or transfer any
property owned by it in order then or thereafter to lease such property or lease
other property that the Borrower or any Subsidiary of the Borrower intends to
use for substantially the same purpose as the property being sold or
transferred.
10.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not, and will
not permit any of its Subsidiaries to, (i) use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (ii) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (iii) generate any Hazardous Substances on any of the Real Estate,
(iv) conduct any activity at any Real Estate or use any Real Estate in any
manner so as to cause a release (i.e. releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping) or threatened release of Hazardous Substances on, upon or
into the Real Estate or (v) otherwise conduct any activity at any Real Estate or
use any Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law, in any
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case in a manner which could reasonably be expected to have a material adverse
effect on the business or financial condition of the Borrower and its
Subsidiaries, taken as a whole.
10.8. OTHER DEBT. The Borrower will not, and will not permit any of its
Subsidiaries to, (a) amend, supplement or otherwise modify the terms of any
Subordinated Debt or prepay, redeem or repurchase any Subordinated Debt (other
than, so long as no Default or Event of Default exists or would result from any
such repurchase, repurchases of Subordinated Debt pursuant to Section 4.16 of
the Senior Subordinated Note Indenture that do not exceed (i) $250,000 in
principal amount (plus accrued interest), in the aggregate with respect to all
holders of Subordinated Debt, in any calendar year or (ii) $25,000 in principal
amount (plus accrued interest), in the aggregate with respect to any single
holder of Subordinated Debt, in any calendar year) or (b) other than the
Securitization Subsidiaries, prepay, redeem or repurchase Indebtedness
outstanding under the Bravo Credit Agreement, the Capital Purchase Agreement or
the Sale Agreements.
10.9. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA Affiliate
will:
(a) engage in any "prohibited transaction" within the meaning of
ss. 406 of ERISA or ss. 4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur a material
"accumulated funding deficiency", as such term is defined in ss. 302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance of a material amount on
the assets of the Borrower or any of its Subsidiaries pursuant to ss.
302(f) or ss. 4068 of ERISA; or
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss. 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities.
10.10. BANK ACCOUNTS. The Borrower will not, and will not permit any of its
Subsidiaries to, (i) establish any bank accounts other than those listed on
SCHEDULE 8.20 without the Agent's prior written consent, (ii) violate directly
or indirectly any bank agency or lock box agreement in favor of the Agent for
the benefit of the Banks and the Agent with respect to such account, or (iii)
deposit into any of the payroll accounts listed on SCHEDULE 8.20 any amounts in
excess of amounts necessary to pay current payroll obligations from such
accounts.
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10.11. SECURITIZATION SUBSIDIARIES STOCK. The Borrower will not sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to any shares of stock of the Securitization Subsidiaries.
10.12. CHANGE IN CREDIT POLICY. The Borrower shall not make any change in
the character of its business or in its Credit Policy, which change would, in
either case, impair the collectibility of any Contract. ACFC shall not make any
change in the character of its business or in the ACFC Credit Policy, which
change would, in either case, impair the collectibility of any Contract.
11. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligation to issue,
extend or renew any Letters of Credit:
11.1. DEBT RATIO. The Borrower will not permit at any time the Debt Ratio
to be greater than 7.5:1.00.
11.2. CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not permit
Consolidated Tangible Net Worth at any time to be less than the sum of (i)
$35,000,000 PLUS (ii) on a cumulative basis, 75% of positive Consolidated Net
Income for each fiscal quarter beginning with the fiscal quarter commencing on
or after October 1, 1999, PLUS (iii) 100% of the proceeds of any sale by the
Borrower or any of its Subsidiaries of (A) equity securities issued by the
Borrower or any of its Subsidiaries, or (B) warrants or subscription rights for
equity securities issued by the Borrower or any of its Subsidiaries.
11.3. INTEREST COVERAGE. The Borrower will not permit the ratio of (i)
Consolidated Earnings Before Interest and Taxes for any period of four
consecutive fiscal quarters (treated as a single accounting period), to (ii)
Consolidated Total Interest Expense for such period, to be less than 1.15 to
1.00 at any time.
11.4. CAPITAL EXPENDITURES. The Borrower will not make, or permit any
Subsidiary of the Borrower to make, Capital Expenditures during any fiscal year
that exceed, in the aggregate, $1,000,000.
11.5. CONTRACTUALLY DELINQUENT CUSTOMER RECEIVABLES TO GROSS CUSTOMER
RECEIVABLES RATIO. The Borrower will not permit the sum of Borrower's
Contractually Delinquent Customer Receivables to exceed 9% of Borrower's Gross
Customer Receivables, at any time.
11.6. RESERVES TO CONTRACTUALLY DELINQUENT CUSTOMER RECEIVABLES. The
Borrower will not, at the end of any fiscal quarter, permit Reserves with
respect to the Borrower and its Subsidiaries to be less than 50% of the sum of
Contractually Delinquent Customer Receivables of the Borrower and its
Securitization Subsidiaries.
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11.7. ALLOWANCE FOR DOUBTFUL ACCOUNTS. The Borrower will not permit the
allowance for doubtful accounts for the Borrower and its Subsidiaries (as
determined in accordance with generally accepted accounting practices), to be
less than 2% of the Net Investment in Leases and Notes for the Borrower and its
Subsidiaries, at any time. ACFC will not permit ACFC's allowance for doubtful
accounts (as determined in accordance with generally accepted accounting
practices), to be less than 1% of ACFC's Net Investment in Leases and Notes, at
any time.
11.8. COLLECTIONS TO BILLINGS. The Borrower will not permit, at the end of
any calendar month with respect to the preceding three month period, the average
Collections of the Borrower and its Subsidiaries to be less than 94% of Billings
of the Borrower and its Subsidiaries.
11.9. LEASES. The Borrower will not, and will not permit any of its
Subsidiaries to, as lessee, enter into, permit to exist, or renew any agreements
to rent or lease any real or personal property if the aggregate amount of Rental
Obligations accrued and to accrue under all such agreements will exceed
$5,000,000.
11.10. EQUIPMENT SUPPLIER CONCENTRATION. The aggregate of Accounts
Receivable of the Borrower and its Subsidiaries generated after June 23, 1994
through the financing of Equipment supplied by any single Equipment Supplier
shall not exceed 50% of total Accounts Receivable of the Borrower and its
Subsidiaries.
12. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Loans and of the Agent to
issue any initial Letters of Credit shall be subject to the satisfaction of the
following conditions precedent on or prior to the date hereof:
12.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
12.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Banks shall have
received from the Borrower and ACFC, (i) a copy, certified by a duly authorized
officer of such Person to be true and complete on the Closing Date, of each of
(A) its charter or other incorporation documents as in effect on such date of
certification, and (B) its by-laws as in effect on such date, or (ii) a
certificate executed by a duly authorized officer of such Person certifying that
there have been no changes to such charter documents or by-laws since May 15,
1995 and that the copies of such documents delivered to the Banks on May 15,
1995, were, as of the date of original delivery, and are, as of the date hereof,
true and correct copies of such documents as in effect at such time, and (iii)
certificates of good standing or authorization to do business from the secretary
of state of each of
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Delaware and Massachusetts with respect to the Borrower and Delaware and
Connecticut with respect to ACFC.
12.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and ACFC of this Credit
Agreement and the other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence thereof satisfactory to
the Banks shall have been provided to each of the Banks.
12.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received from
the Borrower and ACFC an incumbency certificate, dated as of the Closing Date,
signed by a duly authorized officer of the Borrower or such Subsidiary, and
giving the name and bearing a specimen signature of each individual who shall be
authorized: (i) to sign, in the name and on behalf of each of the Borrower of
such Subsidiary, each of the Loan Documents to which the Borrower or such
Subsidiary is or is to become a party; (ii) in the case of the Borrower, to make
Loan Requests and Conversion Requests; and (iii) to give notices and to take
other action on its behalf under the Loan Documents.
12.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law) security interest in
the Collateral. All filings, recordings, deliveries of instruments and other
actions necessary or desirable in the opinion of the Agent to protect and
preserve such security interests shall have been duly effected. The Agent shall
have received evidence thereof in form and substance satisfactory to the Agent.
12.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Agent shall have
received from each of the Borrower and ACFC, a completed and fully executed
Perfection Certificate or a certificate of the Secretary or Assistant Secretary
of the Borrower and ACFC, as the case may be, certifying that the information
set forth in the Perfection Certificates delivered to the Agent on May 15, 1995
remains true and complete in all respects as of the Closing Date (other than
with respect to Schedules 6(A), 6(B) and 9 thereto, copies of which changed
Schedules shall have been received by each of the Banks) and the results of UCC
searches with respect to its Collateral, indicating no liens other than
Permitted Liens and otherwise in form and substance satisfactory to the Agent.
12.7. CERTIFICATES OF INSURANCE. The Agent shall have received (i) a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance with
the provisions of the Security Agreements and (ii) certified copies of all
policies evidencing such insurance (or certificates therefore signed by the
insurer or an agent authorized to bind the insurer).
12.8. BANK AGENCY AGREEMENTS. The Agent shall have received an agreement,
in form and substance satisfactory to the Agent, from each bank at
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which the Borrower or ACFC maintains depository accounts at which the Borrower
or ACFC at any time has a balance of $100,000 or more (including bank agency or
lock box agreements but excluding accounts for which availability is swept daily
into accounts maintained by the Borrower or ACFC at Fleet) concerning the
Agent's security interest for the benefit of the Banks and the Agent in such
accounts.
12.9. BORROWING BASE REPORT. The Agent shall have received from the
Borrower the initial Borrowing Base Report dated as of the Closing Date.
12.10. ACCOUNTS RECEIVABLE AGING REPORT. The Agent shall have received from
the Borrower the most recent Accounts Receivable aging report of the Borrower
and its Subsidiaries dated as of a date which shall be no more than fifteen (15)
days prior to the Closing Date and the Borrower shall notify the Agent in
writing on the Closing Date of any material deviation from the Accounts
Receivable values reflected in such Accounts Receivable aging report and shall
provide the Agent with such supplementary documentation as the Agent may
reasonably request.
12.11. SOLVENCY CERTIFICATE Each of the Banks shall have received an
officer's certificate of the Borrower dated as of the Closing Date as to the
solvency of the Borrower and its Subsidiaries following the consummation of the
transactions contemplated herein and in form and substance satisfactory to the
Banks.
12.12. OPINION OF COUNSEL. Each of the Banks and the Agent shall have
received a favorable opinion addressed to the Banks and the Agent, dated as of
the Closing Date, in form and substance satisfactory to the Banks and the Agent,
from Hill & Barlow counsel to the Borrower and its Subsidiaries.
13. CONDITIONS TO ALL BORROWINGS.
The obligation of the Banks to make any Loans and of the Agent to issue,
extend or renew any Letters of Credit whether on or after the Closing Date shall
be subject to the satisfaction of each of the following conditions precedent:
13.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
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13.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Agent would make it illegal for the Agent to
issue, extend or renew such Letter of Credit.
13.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
13.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
13.5. BORROWING BASE REPORT. The Agent shall have received the most recent
Borrowing Base Report required to be delivered to the Agent in accordance with
ss.9.4(e) and, if requested by the Agent, a Borrowing Base Report dated within
one (1) day of the Drawdown Date of the requested Loan or the issuance,
extension or renewal of the requested Letter of Credit.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
14.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest on the Loans, the
commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums
due hereunder or under any of the other Loan Documents, when the same shall
become due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall (i) fail to comply with any of its covenants
contained in (i) ss. ss. 9.4, 10.1 through 10.6, or 11 or (ii) fail to
comply with any of its covenants contained in ss. ss. 9.1 through 9.3, ss.
ss. 9.5 through 9.17 and ss. ss. 10.7 through 10.12 for a period exceeding
ten (10) days;
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(d) the Borrower or any of its Subsidiaries shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this ss. 14.1) for
fifteen (15) days after written notice of such failure has been given to
the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents or
in any other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Leases,
or fail to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, evidencing or securing
borrowed money or credit received or in respect of any Capitalized Leases
for such period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations
issued thereunder to accelerate the maturity thereof and which default is
not waived by the parties thereto;
(g) the Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Subsidiaries or of any
substantial part of the assets of the Borrower or any of its Subsidiaries
or shall commence any case or other proceeding relating to the Borrower or
any of its Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law
of any jurisdiction, now or hereafter in effect, or shall take any action
to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any such
case or other proceeding, or a decree or order for relief is entered in
respect of the Borrower or any Subsidiary of the Borrower in an involuntary
case under federal bankruptcy laws as now or hereafter constituted;
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(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged, against the Borrower or any of
its Subsidiaries exceeds in the aggregate $500,000;
(j) the holders of all or any part of the Subordinated Debt or
Indebtedness under the Bravo Facility Documents shall accelerate the
maturity of all or any part of such debt or such debt shall be prepaid,
redeemed or repurchased in whole or in part; PROVIDED, HOWEVER, that (A)
early termination of the Bravo Credit Agreement by Bravo pursuant to the
terms thereof shall not constitute an acceleration by such holders; (B)
payments by Bravo pursuant to Sections 2.05(b) and 2.05(c) of the Bravo
Purchase Agreement or Sections 2.04(d) or 2.04(e) of the Bravo Lease
Receivables Purchase Agreement shall not constitute prepayment of
Indebtedness under the Bravo Credit Agreement; and (C) repurchases of
Subordinated Debt pursuant to Section 4.16 of the Senior Subordinated Note
Indenture that do not exceed (i) $250,000 in principal amount (plus accrued
interest) in the aggregate with respect to all holders of Subordinated Debt
in any calendar year or (ii) $25,000 in principal amount (plus accrued
interest) in the aggregate with respect to any single holder of
Subordinated Debt in any calendar year, shall not constitute a Default or
Event of Default pursuant to this subsection 14.1(j);
(k) if any of the Loan Documents shall be canceled, terminated,
revoked or rescinded or the Agent's security interests, mortgages or liens
in substantially all of the Collateral shall cease to be perfected, or
shall cease to have the priority contemplated by the Security Documents, in
each case otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Banks, or any
action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the loan documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto or any of
their respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Majority Banks shall have determined in
their reasonable discretion that such event reasonably could be expected to
result in liability of the Borrower or any of its Subsidiaries to the PBGC
or such Guaranteed Pension Plan in an aggregate amount exceeding $100,000
and such event in the circumstances occurring reasonably could constitute
grounds for the termination of such Guaranteed Pension Plan by the PBGC or
for the appointment by the appropriate United States District Court of a
trustee
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to administer such Guaranteed Pension Plan; or a trustee shall have been
appointed by the United States District Court to administer such Guaranteed
Pension Plan; or the PBGC shall have instituted proceedings to terminate
such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of
its business and such order shall continue in effect for more than thirty
(30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of the Borrower or any of its
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries, taken
as a whole;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
the Borrower or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew would have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries, taken
as a whole;
(p) the Borrower or any of its Subsidiaries shall be indicted for a
state or federal crime, or any civil or criminal action shall otherwise
have been brought against the Borrower or any of its Subsidiaries, a
punishment for which in any such case could include the forfeiture of any
assets of the Borrower or such Subsidiary included in the Borrowing Base or
any assets of the Borrower or such Subsidiary not included in the Borrowing
Base but having a fair market value in excess of $100,000;
(q) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act) of fifty-one
percent (51%) or more of the outstanding shares of common stock of the
Borrower or any "Change in Control" shall occur under the terms of the
Indenture;
(r) the occurrence of a Bravo Event of Termination and the expiration
of any applicable cure period available to Bravo under the Bravo Purchase
Agreement or a Wind-Down Event and the expiration of
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any applicable cure period available to Bravo under the Bravo Facility
Documents;
(s) the occurrence of any default or any event of default under any of
the Sale Agreements;
(t) the Borrower shall cease to own one hundred percent (100%) of the
outstanding shares of common stock of ACFC; or
(u) the occurrence of a Capital Event of Termination and the
expiration of any applicable cure period available to Capital under the
Capital Purchase Agreement or a Capital Wind-Down Event and the expiration
of any applicable cure period available to Capital under the Capital
Lease-Receivables Purchase Agreement or a Capital Servicing Termination
Event and the expiration of any applicable cure period available to Capital
under the Capital Facility Documents;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes, the other Loan Documents, and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; PROVIDED that in the event of any Event
of Default specified in ss.14.1(g), 14.1(h), 14.1(j) or 14.1(q), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
14.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in ss.14.1(g), ss.14.1(h), ss.14.1(j) or 14.1(q) shall occur,
any unused portion of the credit hereunder shall forthwith terminate and each of
the Banks shall be relieved of all obligations to make Loans to the Borrower and
the Agent shall be relieved of all further obligations to issue, extend or renew
Letters of Credit. If any other Event of Default shall have occurred and be
continuing, or if on any Drawdown Date the conditions precedent to the making of
the Loans to be made on such Drawdown Date or (as the case may be) to issuing,
extending or renewing such Letters of Credit on such date are not satisfied, the
Agent may and, upon the request of the Majority Banks, shall, by notice to the
Borrower, terminate the unused portion of the credit hereunder, and upon such
notice being given such unused portion of the credit hereunder shall terminate
immediately and each of the Banks shall be relieved of all further obligations
to make Loans and the Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any such notice is given to the
Borrower the Agent will forthwith furnish a copy thereof to each of the Banks.
No termination of the credit hereunder shall relieve the Borrower of any of the
Obligations or any of its existing obligations to any of the Banks arising under
other agreements or instruments.
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14.3. REMEDIES. In case any one or more of the Events of Default shall have
occurred and be continuing, and whether or not the Agent shall have accelerated
the maturity of the Loans pursuant to ss.14.1, each Bank, if owed any amount
with respect to the Loans or the Reimbursement Obligations, may proceed to
protect and enforce its rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any covenant or
agreement contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
14.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that following the
occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any the security documents, or otherwise with respect to the
realization upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent or any of the Banks for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Agent or any of the Banks in connection with
the collection of such monies by the Agent or any of the Banks, for the
exercise, protection or enforcement by the Agent or any of the Banks of all
or any of the rights, remedies, powers and privileges of the Agent or any
of the Banks under this Credit Agreement or any of the other loan documents
or in respect of the collateral and supports the provision of adequate
indemnity to the Agent or any of the Banks against all taxes or liens which
by law shall have, or may have, priority over the rights of the Agent or
any of the Banks to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks may determine; PROVIDED, HOWEVER, that distributions in
respect of such Obligations shall be made (i) PARI PASSU among Obligations
with respect to the Agent's fee payable under ss.4.1 and all other
Obligations and (ii) with respect to each type of Obligation owing to the
Banks such as interest, principal, fees and expenses, among the Banks PRO
RATA; and PROVIDED, FURTHER, that the Agent may in its discretion make
proper allowance to take into account any Obligations not then due and
payable;
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(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Banks and the Agent of all of the
Obligations, to the payment of any obligations required to be paid pursuant
to ss. 9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
15. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Banks to the Borrower and any securities or other property of the Borrower in
the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (i) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (ii) if such Bank
shall receive from the Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by, or constituting Reimbursement Obligations owed to, such
Bank, by proceedings against the Borrower at law or in equity or by proof
thereof in bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of the Note
or Notes held by, or Reimbursement Obligations owed to, such Bank any amount in
excess of its ratable portion of the payments received by all of the Banks with
respect to the Notes held by, and Reimbursement Obligations owed to, all of the
Banks, such Bank will make such disposition and arrangements with the other
Banks with respect to such excess, either by way of distribution, PRO TANTO
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Notes held by it or Reimbursement Obligations owed
it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED
that if all or any part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest.
16. THE AGENT.
16.1. AUTHORIZATION. (a) The Agent is authorized to take such action on
behalf of each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto,
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PROVIDED that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is that of an
independent contractor. The use of the term "Agent" is for convenience only and
is used to describe, as a form of convention, the independent contractual
relationship between the Agent and each of the Banks. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the Agent and any of the
Banks. As an independent contractor empowered by the Banks to exercise certain
rights and perform certain duties and responsibilities hereunder and under the
other Loan Documents, the Agent is nevertheless a "representative" of the Banks,
as that term is defined in Article 1 of the Uniform Commercial Code, for
purposes of actions for the benefit of the Banks and the Agent with respect to
all collateral security and guaranties contemplated by the Loan Documents. Such
actions include the designation of the Agent as "secured party", "mortgagee" or
the like on all financing statements and other documents and instruments,
whether recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agent.
(c) Each of the Banks and the Agent acknowledge and agree that (i) the
Agent is authorized to release the security interest created by the Security
Documents in the Bravo Transferred Assets and that (ii) the Agent is authorized
to execute and deliver, on behalf of the Banks and the Agent, such partial
releases under the Uniform Commercial Code as may be necessary or desirable to
accomplish a release of the security interest created by the Security Documents
in the Bravo Transferred Assets. Each of the Banks and the Agent further
acknowledge and agree that (i) the Agent is authorized, from time to time, to
release the security interest created by the Security Documents in any assets
sold or otherwise transferred by the Borrower pursuant to the Sale Agreements
and that (ii) the Agent is authorized to execute and deliver, on behalf of the
Banks and the Agent, such partial releases under the Uniform Commercial Code as
may be necessary or desirable to accomplish a release of the security interest
created by the Security Documents in the assets sold or otherwise transferred by
the Borrower pursuant to the Sale Agreements. Each of the Banks and the Agent
acknowledge and agree that (i) the Agent is authorized to release the security
interest created by the Security Documents in the Capital Transferred Assets and
that (ii) the Agent is authorized to execute and deliver, on behalf of the Banks
and the Agent, such partial releases under the Uniform Commercial Code as may be
necessary or desirable to accomplish a release of the security interest created
by the Security Documents in the Capital Transferred Assets.
16.2. EMPLOYEES AND AGENTS. The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its
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rights and duties under this Credit Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower.
16.3. NO LIABILITY. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
16.4. NO REPRESENTATIONS. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the Notes, any
of the other Loan Documents or any instrument at anytime constituting, or
intended to constitute, collateral security for the Notes, or for the value of
any such collateral security or for the validity, enforceability or
collectibility of any such amounts owing with respect to the Notes, or for any
recitals or statements, warranties or representations made herein or in any of
the other Loan Documents or in any certificate or instrument hereafter furnished
to it by or on behalf of the Borrower, or be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time constituting, or intended to
constitute, collateral security for the Notes or to inspect any of the
properties, books or records of the Borrower or any of its Subsidiaries. The
Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete. The Agent has not
made nor does it now make any representations or warranties, express or implied,
nor does it assume any liability to the Banks, with respect to the credit
worthiness or financial conditions of the Borrower or any of its Subsidiaries.
Each Bank acknowledges that it has, independently and without reliance upon the
Agent or any other Bank, and based upon such information and documents as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Credit Agreement. For purposes of determining compliance with the conditions set
forth in ss.12, each Bank that has executed this Credit Agreement shall be
deemed to have consented to, approved or accepted, or to be satisfied with, each
document and matter either sent, or made available, by the Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Bank, unless
an officer of the Agent active upon the Borrower's account shall have received
notice from such Bank prior to the Closing Date specifying such Bank's objection
thereto and such objection shall not have been withdrawn by notice to the Agent
to such effect on or prior to the Closing Date.
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16.5. PAYMENTS.
16.5.1. PAYMENTS TO AGENT. A payment by the Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's PRO RATA share of payments received by
the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
16.5.2. DISTRIBUTION BY AGENT. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under
the Notes or under any of the other Loan Documents might involve it in
liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either repay to
the Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
16.5.3. DELINQUENT BANKS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (i) to make available to the Agent its PRO RATA share of
any Loan or to purchase any Letter of Credit Participation or (ii) to
comply with the provisions of ss.15 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its PRO RATA
share of such payments due and payable to all of the Banks, in each case
as, when and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall be
deemed a Delinquent Bank until such time as such delinquency is satisfied.
A Delinquent Bank (i) shall be deemed to have assigned any and all
principal payments due to it from the Borrower, whether on account of
outstanding Loans or Unpaid Reimbursement Obligations, to the remaining
nondelinquent Banks for application to, and reduction of, their respective
PRO RATA shares of all outstanding Loans and Unpaid Reimbursement
Obligations and (ii) shall not be entitled to vote on any matter requiring
Majority Bank approval and there shall be excluded from the determination
of Majority Banks at such time (a) the aggregate outstanding amount of
Notes held by such Delinquent Bank at such time and (b) if no such
principal is outstanding, the aggregate Commitment of such Delinquent Bank
at such time. The Delinquent Bank hereby authorizes the Agent to distribute
such payments to the nondelinquent Banks in proportion to their respective
PRO RATA shares of all outstanding Loans and Unpaid Reimbursement
Obligations. A Delinquent Bank shall be deemed to have satisfied in full
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a delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid Reimbursement Obligations of
the nondelinquent Banks, the Banks' respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations have returned to
those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
16.6. HOLDERS OF NOTES. The Agent may deem and treat the payee of any Note
or the purchaser of any Letter of Credit Participation as the absolute owner
thereof for all purposes hereof until it shall have been furnished in writing
with a different name by such payee or by a subsequent holder.
16.7. INDEMNITY. The Banks ratably agree hereby to indemnify and hold
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent or such affiliate has not
been reimbursed by the Borrower as required by ss.17), and liabilities of every
nature and character arising out of or related to this Credit Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's or such affiliate's actions taken
hereunder or thereunder, except to the extent that any of the same shall be
directly caused by the Agent's willful misconduct or gross negligence.
16.8. AGENT AS BANK. In its individual capacity, Fleet shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes, as
it would have were it not also the Agent.
16.9. RESIGNATION. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
16.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of
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Default, it shall promptly notify the Agent thereof. The Agent hereby agrees
that upon receipt of any notice under this ss.16.10 it shall promptly notify the
other Banks of the existence of such Default or Event of Default.
16.11. DUTIES IN THE CASE OF ENFORCEMENT. In case one of more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (i) so requested by
the Majority Banks and (ii) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to exercise all or any legal and equitable and other
rights or remedies on behalf of, and for the account of each bank, and enforce
the provisions of the Loan Documents; provided that each Bank shall retain its
rights under ss.14.3. The Majority Banks may direct the Agent in writing as to
the exercise of such rights and remedies and as to the method and the extent of
any such sale or other disposition, the Banks hereby agreeing to indemnify and
hold the Agent harmless from all liabilities incurred in respect of all actions
taken or omitted in accordance with such directions, PROVIDED that the Agent
need not comply with any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
17. EXPENSES.
The Borrower agrees to pay (i) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (ii) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's net income) on or
with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify the Agent and each Bank with respect
thereto), (iii) the reasonable fees, expenses and disbursements of the Agent's
Special Counsel or any local counsel to the Agent incurred in connection with
the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (iv) the
reasonable fees, expenses and disbursements of the Agent or any of its
affiliates incurred by the Agent in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, including all title insurance premiums and
surveyor, engineering and appraisal charges, (v) any fees, costs, expenses and
bank charges, including bank charges for returned checks, incurred by the Agent
in establishing, maintaining or handling agency accounts, lock box accounts and
other accounts for the collection of any of the Collateral; (vi) all reasonable
out-of-pocket expenses (including without limitation reasonable attorneys' fees
and costs, which attorneys may be employees of any Bank or the Agent, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or the Agent in connection
with (A) the enforcement of or preservation of rights under any of the Loan
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Documents against the Borrower or any of its Subsidiaries or the administration
thereof after the occurrence of a Default or Event of Default and (B) any
litigation, proceeding or dispute whether arising hereunder or otherwise, in any
way related to any Bank's or the Agent's relationship with the Borrower or any
of its Subsidiaries and (vii) all reasonable fees, expenses and disbursements of
any Bank or the Agent incurred in connection with UCC searches, UCC filings or
mortgage recordings. The covenants of this ss.17 shall survive payment or
satisfaction of payment of amounts owing with respect to the Notes.
18. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent, its
affiliates and the Banks from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of this
Credit Agreement or any of the other Loan Documents or the transactions
contemplated hereby including, without limitation, (i) any actual or proposed
use by the Borrower or any of its Subsidiaries of the proceeds of any of the
Loans, (ii) the reversal or withdrawal of any provisional credits granted by the
Agent upon the transfer of funds from bank agency or lock box accounts or in
connection with the provisional honoring of checks or other items, (iii) any
actual or alleged infringement of any patent, copyright, trademark, service mark
or similar right of the Borrower or any of its Subsidiaries comprised in the
Collateral, (iv) the Borrower or any of its Subsidiaries entering into or
performing this Credit Agreement or any of the other Loan Documents or (v) with
respect to the Borrower and its Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the presence, disposal, escape,
seepage, leakage, spillage, discharge, emission, release or threatened release
of any Hazardous Substances or any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances (including, but
not limited to claims with respect to wrongful death, personal injury or damage
to property), in each case including, without limitation, the reasonable fees
and disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks, the Agent and its affiliates
shall be entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this ss.18 are unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The covenants contained in this ss.18
shall survive payment of satisfaction in full of all other obligations.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
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Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of the Loans, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Credit Agreement or the Notes or any of the other Loan Documents
remains outstanding or any Bank has any obligation to make any Loans, and for
such further time as may be otherwise expressly specified in this Credit
Agreement. All statements contained in any certificate or other paper delivered
to any Bank or the Agent at any time by or on behalf of the Borrower or any of
its Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the
Borrower or such Subsidiary hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. CONDITIONS TO ASSIGNMENT. Except as provided herein, each Bank may
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Credit Agreement (including all or a portion
of its Commitment Percentage and Commitment and the same portion of the Loans at
the time owing to it, its participating interest in the risk relating to any
Letters of Credit and the Notes held by it); PROVIDED that (i) unless such
assignment is to an affiliate of the assigning Bank, the Agent shall have given
its prior written consent to such assignment, which consent shall not be
unreasonably withheld, (ii) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Bank's rights and obligations under
this Credit Agreement, (iii) each assignment shall be in an amount that is not
less than $5,000,000 or a greater whole multiple of $1,000,000, and (iv) the
parties to such assignment shall execute and deliver to the Agent, for recording
in the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of EXHIBIT F hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, 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, (i) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (ii) the assigning Bank
shall, to the extent provided in such assignment and upon payment to the Agent
of the registration fee referred to in ss.20.3, be released from its obligations
under this Credit Agreement.
20.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in
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connection with this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement,
the other Loan Documents or any other instrument or document furnished
pursuant hereto or the attachment, perfection or priority of any security
interest or mortgage;
(b) the assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower
and its Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations of any of their obligations
under this Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in ss.8.4 and ss.9.4 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Credit Agreement are
required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance or Instrument of
Accession; and
(i) such assignee acknowledges that it has made arrangements with the
assigning Bank satisfactory to such assignee with respect to its PRO RATA
share of Letter of Credit Fees in respect of outstanding Letters of Credit.
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20.3. REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Loans owing to and Letter of Credit
Participations purchased by the Banks from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Credit Agreement.
The Register shall be available for inspection by the Borrower and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of $3,500.
20.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (i) record the information contained therein in the
Register, and (ii) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note in the case of an assignment, a new
Note to the order of such Eligible Assignee in an amount equal to the amount
assumed by such Eligible Assignee pursuant to such Assignment and Acceptance
and, if the assigning Bank has retained some portion of its obligations
hereunder in the case of an assignment, a new Note to the order of the assigning
Bank in an amount equal to the amount retained by it hereunder. Such new Notes
shall provide that they are replacements for the surrendered Notes, shall be in
an aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Within five (5) days of issuance of any new Notes pursuant to this
ss.20.4, the Borrower shall deliver an opinion of counsel, addressed to the
Banks and the Agent, relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding effect thereof, in form
and substance satisfactory to the Banks. The surrendered Notes shall be canceled
and returned to the Borrower.
20.5. PARTICIPATIONS. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (i) each such participation shall be in an amount of not less than
$1,000,000 (ii) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and (iii) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Bank as it relates to such participant, reduce
the amount of any commitment fees or Letter of Credit Fees to which
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such participant is entitled or extend any regularly scheduled payment date for
principal or interest.
20.6. DISCLOSURE. The Borrower agrees that in addition to disclosures made
in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
PROVIDED that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
20.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any assignee
Bank is an Affiliate of the Borrower, then any such assignee Bank shall have no
right to vote as a Bank hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of agreeing to
amendments or other modifications to any of the Loan Documents or for purposes
of making requests to the Agent pursuant to ss.14.1 or ss.14.2, and the
determination of the Majority Banks shall for all purposes of this Agreement and
the other Loan Documents be made without regard to such assignee Bank's interest
in any of the Loans or Reimbursement Obligations. If any Bank sells a
participating interest in any of the Loans or Reimbursement Obligations to a
participant, and such participant is the Borrower or an Affiliate of the
Borrower, then such transferor Bank shall promptly notify the Agent of the sale
of such participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to ss.14.1 or ss.14.2 to the extent that such participation is
beneficially owned by the Borrower or any Affiliate of the Borrower, and the
determination of the Majority Banks shall for all purposes of this Agreement and
the other Loan Documents be made without regard to the interest of such
transferor Bank in the Loans to the extent of such participation.
20.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall retain
its rights to be indemnified pursuant to ss.18 with respect to any claims or
actions arising prior to the date of such assignment. If any assignee Bank is
not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. If any Reference Bank
transfers all of its interest, rights and obligations under this Credit
Agreement, the Agent shall, in consultation with the Borrower and with the
consent of the Borrower and the Majority Banks, appoint another Bank to act as a
Reference Bank hereunder. Anything contained in this ss. 18 to the contrary
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notwithstanding, any Bank may at any time pledge all or any portion of its
interest and rights under this Credit Agreement (including all or any portion of
its Notes) to any of the twelve Federal Reserve Banks organized under ss. 4 of
the Federal Reserve Act, 12 U.S.C. ss. 341. No such pledge or the enforcement
thereof shall release the pledgor Bank from its obligations hereunder or under
any of the other Loan Documents.
20.9. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer any
of its rights or obligations under any of the Loan Documents without the prior
written consent of each of the Banks.
21. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph, telecopy, telefax or
telex and confirmed by delivery via courier or postal service, addressed as
follows:
(a) if to the Borrower, at 60 State Street, Boston, Massachusetts
02110, Attention: Rene Lefebvre, Chief Financial Officer, or at such other
address for notice as the Borrower shall last have furnished in writing to
the Person giving the notice;
(b) if to the Agent, at 100 Federal Street, Boston, Massachusetts
02110, USA, Attention: Large Corporate Division - Harvey H. Thayer, Jr.,
Managing Director, or such other address for notice as the Agent shall last
have furnished in writing to the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on SCHEDULE 1
hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED
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BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE
TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT
THE ADDRESS SPECIFIED IN SS.21. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR
THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss. 27.
26. WAIVER OF JURY TRIAL.
The Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, the Borrower hereby waives any right
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Borrower (i)
certifies that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
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acknowledges that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit Agreement to be given
by one or more or all of the Banks may be given, and any term of this Credit
Agreement or of any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower of any terms of this
Credit Agreement or such other instrument or the continuance of any Default or
Event of Default (other than Defaults of Events of Default set forth in
ss. ss. 14.1(a) and (b)) may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrower and the written consent of the Majority Banks.
Notwithstanding the foregoing, (i) the rate of interest on the Notes, the term
of the Notes, the amount of the Commitments of the Banks, and the amount of
Commitment Fee or Letter of Credit Fees hereunder may not be changed without the
written consent of the Borrower and the written consent of all of the Banks;
(ii) the definition of Majority Banks may not be amended, Collateral may not be
released, the Guaranty may not be released, the Borrower may not assign or
transfer any of its rights or obligations under any of the Loan Documents, the
Defaults or Events of Default set forth in ss.ss.14.1(a) and (b) may not be
waived (either generally or in a particular instaNce and either retroactively or
prospectively) and ss. 4.3 and this ss. 27 may not be amended, without the
written consEnt of all of the Banks; (iii) and the amount of the Agent's fee or
Letter of Credit Fees and ss.16 may not be amendeD without the written consent
of the Agent. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or delay or
omission on the part of any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
28. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
29. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
29.1. SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or
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more of its Subsidiaries, in connection with this Credit Agreement or otherwise,
by a Section 20 Subsidiary. The Borrower, for itself and each of its
Subsidiaries, hereby authorizes (a) such Section 20 Subsidiary to share with the
Agent and each Bank any information delivered to such Section 20 Subsidiary by
the Borrower or any of its Subsidiaries, and (b) the Agent and each Bank to
share with such Section 20 Subsidiary any information delivered to the Agent or
such Bank by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Bank to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of Obligations.
29.2. CONFIDENTIALITY. Each of the Banks and the Agent agrees, on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Banks or the Agent,
PROVIDED that nothing herein shall limit the disclosure of any such information
(a) after such information shall have become public other than through a
violation of this ss.29, (b) to the extent required by statute, rule, regulation
or judicial process, (c) to counsel for any of the Banks or the Agent, (d) to
bank examiners or any other regulatory authority having jurisdiction over any
Bank or the Agent, or to auditors or accountants, (e) to the Agent, any Bank or
any Section 20 Subsidiary, (f) in connection with any litigation to which any
one or more of the Banks, the Agent or any Section 20 Subsidiary is a party, or
in connection with the enforcement of rights or remedies hereunder or under any
other Loan Document, (g) to a Subsidiary or affiliate of such Bank as provided
in ss.29.1 or (h) to anY assignee or participant (or prospective assignee or
participant) so long as such assignee or participant agrees to be bound by the
provisions of ss.20.6.
29.3. PRIOR NOTIFICATION. Unless specifically prohibited by applicable law
or court order, each of the Banks and the Agent shall, prior to disclosure
thereof, notify the Borrower of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) or pursuant to legal
process.
29.4. OTHER. In no event shall any Bank or the Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary by
the Borrower or any of its Subsidiaries. The obligations of each Bank under this
ss. 29 shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by such
Bank to the Borrower prior to the date hereof and shall be binding upon any
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assignee of, or purchaser of any participation in, any interest in any of the
Loans or Reimbursement Obligations from any Bank.
30. TRANSITIONAL ARRANGEMENTS.
30.1. PRIOR LOAN AGREEMENT SUPERSEDED. This Credit Agreement shall
supersede the Prior Loan Agreement in its entirety, except as provided in this
ss.30. On the Closing Date, the rights and obligationS of the parties under the
Prior Loan Agreement and the "Notes" as defined therein shall be subsumed within
and be governed by this Credit Agreement and the Notes; PROVIDED, HOWEVER, that
each of the " Loans" (as defined in the Prior Loan Agreement) outstanding under
the Prior Loan Agreement on the Closing Date shall, for purposes of this Credit
Agreement, be Loans.
30.2. RETURN AND CANCELLATION OF NOTES. Upon its receipt of the Notes to be
delivered hereunder on the Closing Date, each Bank will promptly return to the
Borrower, marked "Canceled", the notes of the Borrower held by such Bank
pursuant to the Prior Loan Agreement, if any.
30.3. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT. All interest and all
commitment, facility and other fees and expenses owing or accruing under or in
respect of the Prior Loan Agreement shall be calculated as of the Closing Date
(prorated in the case of any fractional periods), and shall be paid on the
Closing Date in accordance with the method specified in the Prior Loan
Agreement, as if the Prior Loan Agreement were still in effect.
30.4. NO CLAIMS UNDER PRIOR LOAN AGREEMENT. Each Bank wishes (and the
Borrower agrees) to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise adversely
affect such Bank's rights, interests, contracts, collateral security or
remedies. Therefore, the Borrower unconditionally releases, waives and forever
discharges (i) any and all liabilities, obligations, duties, promises or
indebtedness of any kind of such Bank to the Borrower regarding the execution,
delivery or performance of the Prior Loan Agreement or any of the other Loan
Documents (as defined in the Prior Loan Agreement), except the obligations to be
performed by such Bank for the Borrower as expressly stated in this Credit
Agreement and the other Loan Documents (as defined in this Credit Agreement),
and (ii) all claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether known or unknown, which the Borrower might
otherwise have against such Bank or any of its directors, offices, employees or
agents, in either case (i) or (ii), on account of any condition, act, omission,
event, contract, liability, obligation, indebtedness, claim cause of action,
defense, circumstance or matter of any kind whatsoever which existed, arose or
occurred at any time prior to the date hereof regarding the execution, delivery
or performance of the Prior Loan Agreement or any of the Loan Documents (as
defined in the Prior Loan Agreement).
30.5. INTERBANK SETTLEMENTS. On the Closing Date, each of the Banks shall
pay to each of the other Banks such amounts as may be necessary so as to
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result in the outstanding amount of Loans made by each Bank being equal to such
Bank's Commitment Percentage of the aggregate amount of Loans outstanding as of
the Closing Date. The Borrower and the Banks hereby agree that all amounts paid
to any Bank by any other Bank in connection with interbank settlements with
respect to Loans outstanding immediately prior to the date hereof shall be
deemed to constitute Loans under the Credit Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
HPSC, INC.
By: /s/ Rene Lefebvre
---------------------------------------
Name: RENE LEFEBVRE
Title: VP, CFO
FLEET NATIONAL BANK,
individually and as Agent
By: /s/ Harrey H. Thayer, Jr.
---------------------------------------
Name: HARRY, H. THAYER, JR.
Title: MANAGING DIRECTOR
KEYBANK NATIONAL ASSOCIATION
By: /s/ Eric S. Christensen
---------------------------------------
Name: ERIC S. CHRISTENSEN
Title: VICE PRESIDENT
NATIONAL BANK OF CANADA
By: /s/ A. Keith Broyles
---------------------------------------
Name: A. Keith Broyles
Title: Vice President and Manager
By: /s/ Leonard J. Pellecchia
---------------------------------------
Name: Leonard J. Pellecchia
Title: Vice President
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FAMILY BANK, FSB
By: /s/ Jon R. Sundstrom
---------------------------------------
Name: JON R. SUNDSTROM
Title: SENIOR VICE PRESIDENT
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Bruce A. Bernier
---------------------------------------
Name: Bruce A. Bernier
Title: Vice President
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JOINDER BY GUARANTOR
The Guarantor is hereby joined to the Credit Agreement for the purpose of making
the representations and warranties set forth in Section 8 and being bound by the
covenants set forth in Sections 9, 10 and 11.
AMERICAN COMMERCIAL
FINANCE CORPORATION
By: /s/ Raymond R. Doherty
-----------------------------------
Name: RAYMOND R. DOHERTY
Title: Treasurer