1
EXHIBIT 99.2
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$285,000,000
SECOND
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of February 4, 1997
among
MEDAPHIS CORPORATION
and
THE LENDERS LISTED HEREIN
and ,
as Agent
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS; CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.03. Other Definitional Terms; Knowledge and Awareness . . . . . . . . . . . . . . . . . . . 18
ARTICLE II. REVOLVING LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.01. Revolving Loan Commitments; Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.02. Revolving Loan Notes; Repayment of Principal and Interest . . . . . . . . . . . . . . . 20
Section 2.03. Requests for Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.04. Disbursement of Revolving Loans; Several Revolving Loan
Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.05. Voluntary Reductions in Revolving Loan Commitments . . . . . . . . . . . . . . . . . . 23
Section 2.06. Mandatory Prepayments and Mandatory Reductions in Revolving
Loan Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE III. SWINGLINE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.01. Swingline Loans; Use of Proceeds, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.02. Swingline Loan Note; Repayment of Principal and Interest . . . . . . . . . . . . . . . . 25
Section 3.03. Excess Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.04. Refinancings of Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.05. Purchase and Sale of Participation Interests in Swingline Loans . . . . . . . . . . . . 26
ARTICLE IV. GENERAL CREDIT TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.01. Credit Expiration Date; Extensions . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.02. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.04. Payments, Prepayments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.05. Collateral and Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.06. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.07. Unavailability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.08. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.09. Sharing of Payments, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.10. Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.11. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.12. Assumptions Concerning Funding of LIBOR Advances . . . . . . . . . . . . . . . . . . . . 36
Section 4.13. Apportionment of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.14. Agreements Regarding Interest and Other Charges . . . . . . . . . . . . . . . . . . . . 36
Section 4.15. Benefits to Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.16. Amendment and Restatement; No Novation . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.17. Certain Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.01. Conditions Precedent to Initial Credit Event . . . . . . . . . . . . . . . . . . . . . 38
Section 5.02. Conditions Precedent to All Credit Events . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VI. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.01. Organization; Subsidiaries; Authorization; Valid and Binding
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.02. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.03. Actions Pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.04. Outstanding Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.05. Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.06. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.07. Conflicting Agreements and Other Matters . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.08. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.09. Governmental Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.10. Compliance with Laws and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.11. Possession of Licenses, Franchises, Etc . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.12. Intellectual Property Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.13. Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.14. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.15. Margin Regulations and Investment Company Act, Etc . . . . . . . . . . . . . . . . . . 46
Section 6.16. Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.17. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.18. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.19. No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.20. Payment and Dividend Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.21. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.22. Revisions or Updates of Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VII. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 7.01. Financial Statements and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 7.02. Inspection of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.03. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.04. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.05. Maintenance of Corporate Existence, Properties, Franchises, Etc. . . . . . . . . . . . . 54
Section 7.06. Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.07. Type of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.08. Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.09. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.10. Additional Credit Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.11. Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.12. Chief Financial Officer; Additional Financial Adviser . . . . . . . . . . . . . . . . . 58
ARTICLE VIII. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8.01. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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Section 8.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.03. Merger and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.04. ERISA Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.05. Dividends, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.06. Investments, Acquisitions, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.07. Sale and Lease-Back Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.08. Transactions With Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 8.09. Fiscal Year Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 8.10. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 8.11. Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 8.12. Limitation on Payment and Dividend Restrictions . . . . . . . . . . . . . . . . . . . . 62
Section 8.13. Actions Under Certain Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.14. Certain Litigation Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE IX. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 9.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 9.02. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE X. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.01. Appointment of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.02. Nature of Duties of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.03. Lack of Reliance on Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.04. Certain Rights of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.05. Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.06. Indemnification of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.07. Agent in its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.08. Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10.09. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10.10. Security Documents, Notice of Defaults, Etc.. . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 11.02. No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.03. Payment of Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.04. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 11.05. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.06. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 11.07. Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 11.08. Amendments; Exercise of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 11.09. Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.12. Effectiveness; Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 11.13. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.14. Independence of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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Section 11.15. Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.16. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.17. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.18. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.19. Additional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 11.20. Jury Trial Waiver; Consent to Forum . . . . . . . . . . . . . . . . . . . . . . . . . 80
Annex I - Lender Information
Exhibit A-1 - [ ]
Exhibit A-2 - [ ]
Exhibit B - [ ]
Exhibit C-1 - [ ]
Exhibit C-2 - [ ]
Exhibit C-3 - [ ]
Exhibit C-4 - [ ]
Exhibit D-1 - [ ]
Exhibit D-2 - [ ]
Exhibit E-1 - [ ]
Exhibit E-2 - [ ]
Exhibit F-1 - [ ]
Exhibit F-2 - [ ]
Exhibit G - [ ]
Exhibit H - [ ]
Exhibit I - [ ]
Exhibit J - [ ]
Exhibit K - [ ]
Exhibit L - [ ]
Exhibit M - [ ]
Exhibit N - [ ]
Exhibit O - [ ]
Exhibit P - [ ]
Schedule 6.01(b) - [ ]
Schedule 6.01(c) - [ ]
Schedule 6.03 - [ ]
Schedule 6.06 - [ ]
Schedule 6.08 - [ ]
Schedule 6.12 - [ ]
Schedule 6.20 - [ ]
Schedule 8.01 - [ ]
Schedule 8.02 - [ ]
Schedule 8.03 - [ ]
Schedule 8.11 - [ ]
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT made
and entered into as of February 4, 1997, by and among MEDAPHIS CORPORATION, a
Delaware corporation ("Borrower"), the banks and lending institutions listed on
Annex I attached hereto as the same may be amended from time to time and any
permitted assignees thereof (collectively, the "Lenders", and individually, a
"Lender"), and , a , in its
capacity as the Agent for the Lenders pursuant to Article X hereof (the
"Agent").
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Credit
Agreement, dated as of August 13, 1993, as amended (the "1993 Credit
Agreement"), among Borrower, the Lenders party thereto and , as
agent for such Lenders, such Lenders agreed to provide certain credit
facilities to Borrower; and
WHEREAS, the Borrower has requested that the 1993 Credit
Agreement be amended and restated in its entirety; and
WHEREAS, the Lenders and the Agent are willing to amend
and restate the 1993 Credit Agreement in its entirety on the terms and subject
to the conditions and requirements set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties to this Agreement hereby agree
to amend and restate the 1993 Credit Agreement as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. For purposes of this
Agreement, the following terms shall have the indicated meanings as set forth
below:
"Acquisition" shall mean any acquisition by the Borrower
or any of its Subsidiaries of the stock of any new or additional Subsidiary
(other than a Subsidiary created by Borrower in accordance with Section
8.06(iv) hereof) or of all or substantially all or a substantial part of the
assets of, or a business division of, another Person (other than another
existing Subsidiary).
"Adjusted LIBOR" shall mean, for any Interest Period,
the rate per annum (rounded upwards to the nearest 1/16th of one percentage
point, if necessary) equal to the
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quotient obtained by dividing (i) the offered rate for Dollar deposits for a
period comparable to such Interest Period appearing on the Reuters Screen LIBO
Page (or, if no such rate appears on such screen or such screen is no longer
published, as quoted or published by such other recognized independent quote
service as may be selected by the Agent from time to time) as of 11:00 a.m.,
London time, on the day that is two (2) Business Days prior to the beginning of
such Interest Period (but if at least two such rates appear on such screen or
are so quoted at such time, the offered rate for such Interest Period shall be
the arithmetic mean of such rates) by (ii) a percentage equal to one (1) minus
the then average stated maximum amount (stated as a decimal) of all reserve
requirements applicable to any member of the Federal Reserve System in respect
of Eurocurrency liabilities as defined in Regulation D of the Board of
Governors of the Federal Reserve System (or any successor categories for such
liabilities under such Regulation D).
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under common control
with, such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" shall mean , acting as agent for the
Lenders in the manner and to the extent described in this Agreement and
the other Credit Documents, or any successor acting as such agent pursuant to
Article X hereof.
"Agent Fees" shall mean the fees required to be paid by
the Borrower to the Agent pursuant to Section 4.03(c) hereof.
"Agreement" shall mean this Second Amended and Restated
Credit Agreement, as amended, supplemented or modified from time to time.
"Applicable Margin" shall mean (i) one percentage point
(1.0%) per annum for Loans consisting of Swingline Loans or Base Rate Advances
and (ii) two and one-half percentage points (2.5%) for Loans consisting of
LIBOR Advances; provided, however, that (x) if Borrower's Consolidated EBITDA
for its fiscal quarter ending March 31, 1997 is less than $10,000,000, the
Applicable Margin for its immediately succeeding fiscal quarter shall be
increased by one percentage point (1.0%) for all such Loans, and (y) if at any
time the aggregate outstanding principal balance of the Loans exceeds
$275,000,000 for five (5) consecutive Business Days, the Applicable Margin for
all such Loans shall be increased by one percentage point (1.0%) from (and
including) such fifth (5th) Business Day until (but excluding) the first (1st)
Business Day thereafter on which such balance is reduced to $275,000,000 or
less (but there shall be no increase in the Applicable Margin under this clause
(y) during the Borrower's fiscal quarter ending June 30, 1997 if the Applicable
Margin in effect during such period is otherwise increased pursuant to clause
(x) above).
"Asset Sale" shall mean any sale or other disposition
(or any series of related sales or other dispositions), including without
limitation any loss, damage, destruction or taking, by any Consolidated Company
to any Person other than a Consolidated Company of any property or asset
(including capital stock but excluding the issuance and sale by the Borrower of
its own capital stock) other than any sale or other disposition of assets by
any Consolidated Company
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made in the ordinary course of its business. For purposes of this Agreement, an
Asset Sale by Borrower or one of its Subsidiaries shall be deemed to have
closed or to have occurred (as the case may be) on the Business Day on which
the Net Proceeds therefrom are received by or on behalf of such Credit Party.
"Asset Value" shall mean, with respect to any property
or asset of any Consolidated Company, an amount equal to the greater of (i) the
book value of such property or asset as established in accordance with GAAP,
and (ii) the fair market value of such property or asset as determined in good
faith by the board of directors of such Consolidated Company.
"Assigning Lenders" shall have the meaning given such
term in Section 11.05(b) hereof.
"Assignment and Acceptance Agreement" shall mean any
Assignment and Acceptance Agreement, in the form of Exhibit I attached hereto,
executed by any Assigning Lender and its assignee in connection with such
Assigning Lender's assignment of all or any portion of its rights and
obligations under this Agreement to such assignee pursuant to Section 11.05
hereof.
"Bankruptcy Code" shall mean the Bankruptcy Code of
1978, as amended (11 U.S.C. Section Section 101 et seq.).
"Base Rate" shall mean (with any change in the Base Rate
to be effective as of the date of such change) the higher of (i) the rate which
the Agent publicly announces from time to time to be its prime rate, prime
lending rate, or base rate, as in effect from time to time, and (ii) the sum of
the Federal Funds Rate, as in effect from time to time, plus one half of one
percent (0.5%) per annum. The Agent's Base Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any
customer; and the Agent may make commercial loans or other loans at rates of
interest at, above or below the Agent's Base Rate.
"Base Rate Advance" shall mean any Loans hereunder (or a
portion thereof) which bear interest based on the Base Rate.
"Borrower" shall mean Medaphis Corporation, a Delaware
corporation, and its successors and permitted assigns.
"Borrowing" shall mean the incurrence by the Borrower
under any of the Revolving Loan Commitments of Loans of one type concurrently
having the same Interest Period (in the case of LIBOR Advances) or the
continuation or conversion of an existing Borrowing or Borrowings in whole or
in part.
"BSG Subsidiaries" shall mean, collectively, BSG
Corporation, a Delaware corporation, Imonics Corporation, a Georgia
corporation, Rapid Systems Solutions, Inc., a Maryland corporation and their
respective Subsidiaries.
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"Business Day" shall mean any day excluding Saturday,
Sunday and any other day on which banks are required or authorized to close in
Atlanta, Georgia, and if the applicable Business Day relates to any LIBOR
Advance or the determination of any Interest Period or the calculation of the
Adjusted LIBOR therefor, any day on which trading is not carried on by and
between banks in Dollars in the London interbank market.
"Capital Expenditures" shall mean, for any fiscal period
of any Person, all expenditures made or liabilities incurred by such Person,
whether paid or due and owing, during such period for the acquisition,
purchase, alteration or improvement of items which are, in accordance with
GAAP, treated during such period as "capital expenditures", "additions to
property, plant and equipment" or other comparable items in the financial
statements of such Person prepared in accordance with GAAP, and such term shall
include that portion of any Capitalized Lease Obligations of such Person
originally incurred during such period that is capitalized under GAAP as well
as software development costs for such period, all as determined on a
consolidated basis; provided, however, that this term shall not include the
expenditures made by Borrower or MPSC on or after January 1, 1997 to complete
the construction of MPSC's Greenville, Texas office facility to the extent that
such expenditures (i) do not exceed $2,500,000 in the aggregate, (ii) are not
financed or refinanced with the proceeds of Revolving Loans and (iii) are
financed with the proceeds of other Indebtedness permitted to be incurred under
Section 8.01 hereof.
"Capitalized Lease Obligations" shall mean, with respect
to any Person, any Indebtedness of such Person represented by obligations under
a lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such Indebtedness for purposes hereof
shall be the capitalized amount of such obligations as determined in accordance
with GAAP.
"Cash Management Agreements" shall mean, individually
and collectively, as the context shall require:
(A) The following agreements between Borrower, on the
one hand, and , ,
and/or , on the other hand, and all amendments
thereto, supplements thereof, and replacements therefor, and
whether now or hereafter in effect: (i) Automated Clearing
House (ACH) Agreement dated October 11, 1995; (ii) Domestic
Wire Transfer Agreement dated December 15, 1995; (iii) Stop
Payment Agreement (Direct Connection/
Connection) dated December 12, 1995; (iv)
Connection Services Agreement dated January 1, 1996; and
(v) Wholesale Lockbox Service Agreements dated December
15, 1995; and
(B) Any other agreement entered into from time to time
between the Borrower and/or any of its Subsidiaries, on the
one hand, and and/or any of its
Affiliates (including, without limitation, ,
and/or ), on the other
hand, pertaining to Cash Management Services.
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"Cash Management Services Obligations" shall mean any
and all obligations of Borrower and/or any of its Subsidiaries to
and/or any of its Affiliates (including, without limitation,
and/or ) under any of the Cash Management Agreements or otherwise
relating to any of the Cash Management Services.
"Cash Management Services" shall mean cash management
services for operating, collection, payroll and trust accounts of Borrower
and/or its Subsidiaries provided by and/or its
Affiliates (including, without limitation
and/or ), including, without limitation, automatic clearing house
services, control disbursement services, electronic funds transfer services,
information reporting services, lockbox services, stop payment services, and
wire transfer services.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean (i) any and all of the property
which is pledged or collaterally assigned to the Agent or in which the Agent is
otherwise granted a Lien to secure the Obligations pursuant to any and all of
the Security Documents, and (ii) any and all cash and non-cash proceeds of the
foregoing.
"Commitment Fees" shall mean the fees required to be
paid by the Borrower to the Lenders pursuant to Section 4.03(b) hereof.
"Compliance Certificate" shall mean a certificate of the
chief financial officer, vice president-finance or treasurer of the Borrower
in substantially the form of Exhibit G attached hereto.
"Consolidated Companies" shall mean, collectively, the
Borrower and all of its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of
the Borrower, an amount equal to the sum of the Consolidated Net Income (Loss)
plus, to the extent subtracted in determining such Consolidated Net Income
(Loss), (i) provisions for taxes based on income and (ii) Consolidated Interest
Expense (including any portion of such expenses attributable to discontinued
operations).
"Consolidated EBITAR" shall mean, for any fiscal period
of the Borrower, an amount equal to the sum of Consolidated EBIT plus
amortization expenses and Consolidated Rental Expense to the extent deducted in
determining such Consolidated EBIT (including any portion of such expenses
attributable to discontinued operations).
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"Consolidated EBITDA" shall mean, for any fiscal period
of the Borrower, an amount equal to the sum of Consolidated EBIT plus (i)
depreciation and amortization expenses to the extent deducted in determining
such Consolidated EBIT (including any portion of such expenses attributable to
discontinued operations), as determined on a consolidated basis in accordance
with GAAP, and (ii) the historical Consolidated EBITDA of any Person for such
period which accrued prior to the date such Person became a Subsidiary of the
Borrower or was merged into or consolidated with the Borrower or any of its
Subsidiaries or such Person's assets were acquired by the Borrower or any of
its Subsidiaries (and the underlying records of such Person shall be audited to
the extent Borrower is required pursuant to Regulation S-X of the SEC to
present audited financial information for such Person in documents filed by it
with the SEC). If the Borrower or any of its Subsidiaries sells any Subsidiary
or business division during any fiscal quarter of Borrower, then for the
purpose of determining Borrower's compliance with Section 7.09(a)'s minimum
Consolidated EBITDA covenant and Section 7.09(c)'s maximum Funded Debt Ratio
covenant for such quarter, the Borrower's Consolidated EBITDA for the relevant
testing period specified in such covenant shall be calculated by excluding the
Consolidated EBITDA attributable to such Subsidiary or division for such
period.
"Consolidated Interest Expense" shall mean, for any
fiscal period of the Borrower, the total interest expense of the Consolidated
Companies (including, without limitation, interest expense attributable to
Capitalized Lease Obligations, amortization of deferred financing costs, all
capitalized interest, all commissions, discounts and other fees and charges
owed with respect to bankers acceptance financing, and total interest expenses
(whether shown as interest expense or as loss and expenses on sale of
receivables) under any receivables purchase facility), net of the total
interest income of the Consolidated Companies for such period, all as
determined on a consolidated basis in accordance with GAAP, but such term shall
not include (i) any lease payments under the Synthetic Lease Transaction or
(ii) accounting treatments for or amortization of any original issue discount
arising as a result of the Warrants or any shares of Borrower's stock issued
thereunder.
"Consolidated Net Income (Loss)" shall mean, for any
fiscal period of the Borrower, the sum of (i) the net income (or loss) of the
Consolidated Companies on a consolidated basis for such period (taken as a
single accounting period) determined in conformity with GAAP, plus (ii) (to the
extent excluded from such net income or loss) the net income (or loss) for such
period from discontinued operations of the Consolidated Companies together with
any taxes deducted in computing the same for such period (taken as a single
accounting period), less (iii) (to the extent otherwise included in the
foregoing sums) (x) any gains or losses, together with any related provisions
for taxes, realized upon any sale of assets other than in the ordinary course
of business, and (y) any income or loss of any Person acquired prior to the
date such Person becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries or all or
substantially all of such Person's assets are acquired by the Borrower or any
of its Subsidiaries.
"Consolidated Net Worth" shall mean, as of any date and
with respect to any Person, such Person's total shareholders' equity (including
capital stock, additional paid-in capital and retained earnings, after
deducting treasury stock) which would appear as such on a
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balance sheet of such Person as of such date prepared in accordance with
GAAP, all as determined on a consolidated basis.
"Consolidated Rental Expense" shall mean, for any fiscal
period of the Borrower, the rental expense of the Consolidated Companies for
such period determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any agreement, instrument, security, or undertaking to which such
Person is a party or by which it or any of the property owned by it is bound.
"Copyright Assignments" shall mean any and all Copyright
Collateral Assignment Agreements now or hereafter executed by any Credit Party
in favor of the Agent pursuant to Section 4.05 hereof, each substantially in
the form of Exhibit C-3 attached hereto, and any modification or replacement
thereof or therefor.
"Credit Documents" shall mean, collectively, this
Agreement, the Notes, the Warrants, Intercompany Notes, the Security Documents
and the Post-Closing Requirements Agreement.
"Credit Event" shall mean each Borrowing of a Revolving
Loan or a Swingline Loan hereunder.
"Credit Expiration Date" shall mean June 30, 1998, as
such date may be extended, accelerated or amended from time to time pursuant to
this Agreement.
"Credit Parties" shall mean, collectively, Borrower,
each of the Guarantors, and every other Person who from time to time hereafter
executes a Security Document with respect to all or any portion of the
Obligations.
"Customer Advances" shall mean any and all advances of
money made by MPSC in the ordinary course of its business to its customers.
"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Domestic Subsidiaries" shall mean any and all
Subsidiaries of Borrower which are organized under the laws of the United
States of America or any State thereof.
"Environmental Laws" means all federal, state, local and
foreign laws relating to pollution or protection of the environment, including
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or
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hazardous substances or wastes into the environment (including without
limitation ambient air, surface water, ground water or land), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes, and any and all
regulations, codes, plans, orders, decrees, judgments, injunctions, notices or
demand letters issued, entered, promulgated or approved thereunder.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any
Person, each trade or business (whether or not incorporated) which is a member
of a group of which that Person is a member and which is under common control
within the meaning of the regulations promulgated under Section 414 of the
Code.
"Event of Default" shall have the meaning provided in
Article IX.
"Facility Fee" shall mean the fee required to be paid by
Borrower to the Lenders pursuant to Section 4.03(a) hereof.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Board of Governors of the Federal Reserve System
or the Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (i) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the immediately preceding Business Day as so published
on the next succeeding Business Day, and (ii) if such rate is not published for
any day, the Federal Funds Rate for such day shall be the average of the
quotations for such day on such transactions received by the Agent from three
(3) federal funds brokers of recognized standing selected by the Agent.
"Fixed Charge Coverage Ratio" shall mean, as determined
for each fiscal quarter of the Borrower and calculated on the basis of the
4-quarter period ending therewith, the ratio of (A) Consolidated EBITAR to (B)
the sum of Consolidated Interest Expense plus Consolidated Rental Expense;
provided, however, (i) with respect to Borrower's fiscal quarter ending on June
30, 1997 the Fixed Charge Coverage Ratio shall be calculated based on
Consolidated EBITAR, Consolidated Interest Expense and Consolidated Rental
Expenses for the 2-quarter period ending therewith multiplied by two (2), and
(ii) with respect to Borrower's fiscal quarter ending on September 30, 1997,
the Fixed Charge Coverage Ratio shall be calculated based on the Consolidated
EBITAR, Consolidated Interest Expense and Consolidated Rental Expenses for the
3-quarter period ending therewith multiplied by four-thirds (4/3rds).
"Foreign Subsidiary" shall mean any Subsidiary of the
Borrower which is not a Domestic Subsidiary.
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"Funded Debt" shall mean (i) the Revolving Loans and
(ii) all other Indebtedness for money borrowed, Indebtedness secured by
Purchase Money Liens, capitalized leases, conditional sales contracts and
similar title retention debt instruments, including any current
maturities of such Indebtedness, which by its terms matures more than one (1)
year from such date of calculation, all as determined for the Consolidated
Companies on a consolidated basis. The calculation of Funded Debt shall
include all Funded Debt of the Consolidated Companies plus all Funded Debt of
other Persons to the extent guaranteed by a Consolidated Company or to the
extent supported by a letter of credit issued for the account of a Consolidated
Company. The calculation of Funded Debt shall also include the redemption
amount with respect to any capital stock of the Borrower or its Subsidiaries
required to be redeemed within twelve (12) months from the date of any
calculation thereof.
"Funded Debt Ratio" shall mean, as determined for each
fiscal quarter of Borrower, the ratio of (i) Funded Debt as of the end of such
period to (ii) Consolidated EBITDA for the 4-quarter period ending with such
period; provided, however, (i) with respect to Borrower's fiscal quarter ending
on June 30, 1997 the Funded Debt Ratio shall be calculated based on
Consolidated EBITDA for the 2-quarter period ending therewith multiplied by two
(2), and (ii) with respect to Borrower's fiscal quarter ending on September 30,
1997, the Funded Debt Ratio shall be calculated based on Consolidated EBITDA
for the 3-quarter period ending therewith multiplied by four-thirds (4/3rds).
"GAAP" shall mean, as in effect from time to time,
United States generally accepted accounting principles (which the parties
acknowledge and agree shall include the requirement that such principles be
consistently applied).
"Guarantors" shall mean, collectively, the Domestic
Subsidiaries of Borrower which are designated as such on Schedule 6.01(b)
attached hereto and any other Domestic Subsidiary which may be now or hereafter
required to guarantee some or all of the Obligations pursuant to Section 7.10
hereof.
"Guaranty" shall mean any contractual obligation,
contingent or otherwise, of a Person with respect to any Indebtedness or other
obligation or liability of another Person, including without limitation, any
such Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including Contractual Obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received.
"Guaranty Agreement" shall mean the Guaranty Agreement
executed by the Guarantors in favor of the Agent and the Lenders pursuant to
Section 4.05 and as may be
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supplemented pursuant to Section 7.10 hereof, substantially in the form of
Exhibit B attached hereto, and any modification, supplement or replacement
thereof or therefor.
"HRI" shall mean Healthcare Recoveries, Inc., a Delaware
corporation.
"Indebtedness" of any Person shall mean, without
duplication:
(i) all obligations of such Person which in accordance
with GAAP would be shown on the balance sheet of such Person
as a liability (including, without limitation, obligations for
borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures,
notes or other similar instruments);
(ii) the principal component of all rental obligations
under leases required to be capitalized under GAAP;
(iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of
credit); and
(iv) Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not assumed.
"Initial Guarantors" shall mean, collectively, all of
the Initial Subsidiaries (other than any Foreign Subsidiaries).
"Initial Lenders" shall mean, collectively, the Lenders
which are the initial signatories to this Agreement.
"Initial Subsidiaries" shall mean, collectively, the
Subsidiaries of Borrower which are described on Schedule 6.01(b) as initially
attached hereto.
"Intercompany Loans" shall mean, collectively, all loans
or other extensions of credit by Borrower to any Subsidiary or by any
Subsidiary to another Subsidiary.
"Intercompany Notes" shall mean the Intercompany Notes
issued by each Guarantor and payable to the order of the Borrower or any
Subsidiary evidencing any and all Intercompany Loans made by any payee
thereunder to the maker thereunder, each in the form of Exhibit K attached
hereto, and any extension, renewal, modification or replacement thereof or
therefor.
"Interest Period" shall mean, in the case of the
determination of any Adjusted LIBOR rate, a one (1), two (2), three (3) or six
(6) month period as selected by Borrower; provided, however, that (i) in the
event an Interest Period would end on a day which is not a Business Day, the
Interest Period shall be deemed to end on the immediately succeeding Business
Day, unless such extension would cause such Interest Period to end in the next
calendar
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month, in which case the Interest Period shall be deemed to end on the
immediately preceding Business Day, (ii) any Interest Period which begins on a
day for which there is no numerically corresponding day in the calendar month
in which such Interest Period ends shall, subject to part (iii) below, expire
on the immediately preceding Business Day, and (iii) Borrower shall not be
entitled to select any Interest Period applicable to any Loan which extends
beyond the Credit Expiration Date.
"Interest Rate Contracts" shall mean, with respect to
any Person, any interest rate cap agreements, interest rate collar agreements,
interest rate swap agreements and other similar agreements or arrangements
entered into by such Person in the ordinary course of its business.
"Lender" and "Lenders" shall mean the Initial Lenders
and the other banks or lending institutions (if any) listed on Annex I attached
hereto as the same may be amended from time to time, and each assignee thereof
of which Borrower and the Agent receives notice pursuant to Section 11.05
hereof.
"Lessor Waiver and Consent" shall mean any and all
Lessor Waivers and Consents now or hereafter executed by any lessors of any of
the Borrower's or any Guarantor's facilities in favor of the Agent pursuant to
Section 4.05 hereof, each substantially in the form of Exhibit L attached
hereto (or in such other form as is reasonably acceptable to the Agent), and
any modification or replacement thereof or therefor.
"LIBOR Advance" shall mean any Loans hereunder (or
portion thereof) which bear interest based on Adjusted LIBOR.
"Lien" shall mean any mortgage, pledge, security
interest, security deposit, encumbrance, lien or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction), but excluding the filing of or agreement to file any
cautionary financing statements in connection with any true leases, true
consignments or other transactions in which a Lien is not otherwise granted.
"Loans" shall mean, collectively, the Revolving Loans
and the Swingline Loans.
"Margin Regulations" shall mean Regulation G, Regulation
T, Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time.
"Material Adverse Effect" shall mean a material adverse
effect upon, or a material adverse change in, any of the (i) business, results
of operations, properties, prospects or financial condition of the Consolidated
Companies taken as a whole, (ii) legality, validity, binding effect or
enforceability of any Credit Document (other than any Lessor Waiver and
Consent), or (iii) ability of the Credit Parties taken as a whole to perform
their obligations under the Credit Documents.
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"Material Subsidiary" shall mean (i) each of the
Subsidiaries specified on Schedule 6.01(c) attached hereto and (ii) each other
Subsidiary of the Borrower, whether now existing or hereafter established or
acquired, that at any time from the date of this Agreement through the Credit
Expiration Date has or acquires total assets having an aggregate Asset Value in
excess of $1,000,000.
"Material Subsidiary Asset Sale" shall mean any Asset
Sale of any capital stock (or all or substantially all of the assets or any
business division) of any Material Subsidiary; provided, however, that this
term shall not include the sale of the Borrower's Decision Support Division as
described on Schedule 8.03 attached hereto.
"MPSC" shall mean Medaphis Physician Services
Corporation, a Georgia corporation, and its successors and permitted assigns.
"Multiemployer Plan" shall have the meaning given such
term in Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean, with respect to any Asset
Sale, all cash, including (i) cash receivables (once received) by way of
deferred payment pursuant to a promissory note, a receivable or otherwise
(other than interest payable thereon) and (ii) with respect to Asset Sales
resulting from the loss, damage, destruction or taking of property, the
proceeds of insurance settlements or condemnation awards (other than the
portion of the proceeds of such settlement or awards that are used to repair,
replace, improve or restore the item of property in respect of which such
settlement or award was paid provided that the recipient of such proceeds
enters into a binding contractual obligation to effect such repair,
replacement, improvement or restoration within six (6) months of such loss,
damage or destruction and completes such repair, replacement, improvement or
restoration within twelve (12) months of such loss, damage, destruction or
taking) as and when received in cash, in either case, received by any
Consolidated Company as a result of or in connection with such transaction, net
of all reasonable sale expenses, fees and commissions incurred in connection
therewith and also net of any taxes paid or payable (as estimated in good faith
and on a consolidated basis) within the succeeding sixteen-month period in
connection therewith, and also net of any payment required to be made with
respect to the outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Loans) secured by a Permitted Lien
upon the assets sold in such Asset Sale.
"1993 Credit Agreement" shall have the meaning given
such term in the preamble to this Agreement.
"1993 Loans" shall mean, collectively, any and all loans
made under the 1993 Credit Agreement and which remain outstanding immediately
prior to the making of the initial Loans made under this Agreement.
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" " shall mean ,
a national banking association, and its successors and assigns.
"Notes" shall mean, collectively, the Revolving Loan
Notes and the Swingline Loan Note.
"Notice of Revolving Loan Borrowing" shall have the
meaning given such term in Section 2.03.
"Notice of Revolving Loan Conversion/Continuation" shall
have the meaning given such term in Section 2.03.
"Obligations" shall mean, collectively, (i) all amounts
now or hereafter owing to any or all of the Agent or the Lenders by Borrower or
any other Credit Party pursuant to the terms of this Agreement, any Note, or
any other Credit Document (other than the Warrants), including without
limitation, the unpaid principal balance of any and all Loans and all interest,
fees, expenses and other charges relating thereto or accruing thereon, as well
as any and all other indebtedness, liabilities, and obligations of Borrower or
any other Credit Party, whether direct or indirect, absolute or contingent, or
liquidated or unliquidated, which may be now existing or may hereafter arise
under any of the Credit Documents (other than the Warrants), and together with
any and all renewals, extensions, modifications or refinancings of any of the
foregoing, (ii) all Cash Management Services Obligations, limited, however, as
to this clause (ii) to a maximum aggregate amount of $3,000,000, and excluding
from this clause (ii) any amounts arising from any failure of
and/or any of its Affiliates (including and/or ).
to comply in any material respect with the Guide to the Federal Reserve's
Payments System Risk Policy as in effect from time to time; and (iii) all
obligations of Borrower to the Swingline Lender under the Swingline Account
Agreement.
"O.C.G.A." shall mean the Official Code of Georgia
Annotated as amended from time to time.
"Officer's Certificate" shall mean a certificate signed
in the name of Borrower by its president, chief executive officer, chief
financial officer, vice president-finance or treasurer.
"Other Asset Sale" shall mean any Asset Sale which is
not a Material Subsidiary Asset Sale.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation, or any successor thereto.
"Permitted Lien" shall mean any Lien of a kind which is
not prohibited under Section 8.02 hereof.
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"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, trust or other entity, or any
government or political subdivision or agency, department or instrumentality
thereof.
"Plan" shall mean any "employee benefit plan" (as
defined in Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan, savings
or thrift plan, stock bonus plan, employee stock membership plan, Multiemployer
plan, or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits.
"Pledge Agreements" shall mean the Borrower Pledge
Agreement and the Subsidiary Pledge Agreement executed by Borrower and certain
of the Subsidiaries in favor of the Agent pursuant to Section 4.05 hereof, in
the forms of Exhibit D-1 and Exhibit D-2 attached hereto, respectively, and any
modifications, supplements or replacements thereof or therefor.
"Pledged Deposit Agreements" shall mean any and all
pledged deposit/blocked account agreements entered into among the Agent, any
Credit Party and any Credit Party's depository institution pursuant to Section
4.05 hereof, each substantially in the form of Exhibit M attached hereto (or in
such other form as is acceptable to the Agent), and any modification or
replacement thereof or therefor.
"Post-Closing Requirements Agreement" shall mean the
Post-Closing Requirements Agreement, in the form of Exhibit P attached hereto,
among Borrower, its Domestic Subsidiaries and the Agent.
"Proprietary Information" shall mean all information
about the Borrower or any of its Affiliates which has been furnished from and
after December 11, 1996 to the Agent and the Lenders, and regardless of the
manner in which it is furnished; provided, however, that Proprietary
Information does not include information which (x) is or becomes publicly
available (other than as a result of a breach of Section 11.18 of this
Agreement or of the terms of any other confidentiality agreement between the
Agent or any Lender, as the case may be, and the Borrower), (y) was possessed
by or available to the Agent or any Lender on a nonconfidential basis prior to
its disclosure to the Agent or such Lender by the Borrower or any of its
Affiliates or (z) becomes available to the Agent or any Lender on a
nonconfidential basis from a Person which, to the knowledge of the Agent or
such Lender, as the case may be, is not bound by a confidentiality agreement
with the Borrower or any of its Affiliates and is not otherwise prohibited from
transmitting such information.
"Pro Rata Share" shall mean, when used with reference to
any Lender and any described aggregate or total amount, an amount equal to the
result obtained by multiplying such described aggregate or total amount by a
fraction, the numerator of which shall be such Lender's Revolving Loan
Commitment on such date and the denominator of which shall be the sum of the
Revolving Loan Commitments of all of the Lenders on such date, and if the
Revolving Loan Commitments of the Lenders have been terminated such term shall
mean an amount equal to the
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result obtained by multiplying such aggregate or total amount by a fraction,
the numerator of which shall be the aggregate unpaid principal balance of the
Revolving Loans (but not Swingline Loans) owing to such Lender on such date and
the denominator of which shall be the aggregate unpaid principal balance of all
of the Revolving Loans (but not Swingline Loans) owing to all of the Lenders of
such date.
"Purchase Money Indebtedness" shall mean (i) any
Indebtedness incurred for the sole purpose of paying all or any part of the
purchase price of any fixed assets, (ii) any other Indebtedness incurred for
the sole purpose of financing or refinancing all or any part of the purchase
price of any fixed assets, (iii) any Capitalized Lease Obligations, and (iv)
any renewals, extensions or refinancings thereof (but not any increases in the
principal amounts thereof outstanding at that time).
"Purchase Money Lien" shall mean a Lien upon fixed
assets which secures the Purchase Money Indebtedness relating thereto but only
if such Lien shall at all times be confined solely to the fixed assets the
purchase price of which was financed or refinanced through the incurrence of
the Purchase Money Indebtedness secured by such Lien and only if such Lien
secures solely such Purchase Money Indebtedness.
"Real Estate Collateral" shall mean (i) the real
property described on Schedule 4 attached to the Post-Closing Requirements
Agreement, (ii) any additional real property on which the Agent obtains a Lien
after the date of this Agreement pursuant to Section 4.05 or Section 7.10
hereof, and (iii) any and all related buildings or other improvements now or
hereafter located on any of the foregoing, any and all equipment or fixtures
now or hereafter located on any of the foregoing and used in connection with
the operation or maintenance thereof, and all intangible property rights now or
hereafter arising therefrom and all proceeds of any of the foregoing.
"Real Estate Collateral Documents" shall mean the
mortgages, deeds of trust, security deeds, or other Security Documents which
the Agent acquires any or all of its Liens on any or all of the Real Estate
Collateral, and any and all other mortgages, deeds of trust, security deeds,
leasehold deeds or other similar Security Documents executed after the date
hereof by a Credit Party pursuant to Section 4.05 or Section 7.10 of this
Agreement.
"Required Lenders" shall mean, at any time, Lenders
holding, in the aggregate, not less than sixty-six and two-thirds percent
(66.667%) of the aggregate dollar amount of the Revolving Loan Commitments then
in effect, and if the Revolving Loan Commitments of the Lenders have expired or
have been terminated such term shall mean Lenders holding, in the aggregate,
not less than sixty-six and two-thirds percent (66.667%) of the then aggregate
unpaid principal balance of the Loans then outstanding; provided, however, that
for purposes of determining the outstanding Obligations held by any Lender at
any one time there shall be included or excluded (as the case may be) any
outstanding participation interest in any outstanding Swingline Loans purchased
or sold by such Lender (as the case may be) pursuant to Section 3.05 hereof.
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"Requirement of Law" for any person shall mean the
articles or certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Revolving Loan Commitment" shall mean, at any time and
for any Lender, the amount of its Revolving Loan Commitment as shown on Annex I
attached hereto (as such annex may be amended from time to time) and as such
Revolving Loan Commitment may be reduced pursuant to this Agreement.
"Revolving Loan Notes" shall mean the Revolving Loan
Notes issued by the Borrower and payable to the order of the Lenders as
evidence of the Revolving Loans, each in the form of Exhibit A-1 attached
hereto, and any extension, renewal, modification or replacement thereof or
therefor.
"Revolving Loans" shall mean, collectively, the advances
made by the Lenders to Borrower pursuant to Section 2.01 hereof.
"SEC" shall mean the Securities and Exchange Commission,
or any successor thereto.
"Security Agreements" shall mean the Borrower Security
Agreement and the Subsidiary Security Agreement executed by the Borrower and
the Guarantors in favor of the Agent pursuant to Section 4.05 hereof, in the
forms of Exhibit C-1 and Exhibit C-2 attached hereto, respectively, and any
modifications, supplements or replacements thereof or therefor.
"Security Documents" shall mean, collectively, the
Guaranty Agreement, the Pledge Agreements, the Security Agreements, the
Trademark Security Agreements, the Copyright Assignments, the Pledged Deposit
Agreements, the Real Estate Collateral Documents, and each other guaranty,
security or other collateral document, whether now existing or hereafter
executed and delivered, guaranteeing or securing any or all of the Obligations
and any supplements thereto executed pursuant to or in connection with any of
the foregoing.
"Subordinated Debt" shall mean any and all Indebtedness
for borrowed money of Borrower or any Subsidiary which is subordinated in right
of payment to all Obligations on written subordination terms and conditions
which are satisfactory in all respects to the Required Lenders.
"Subsidiary" means, as applied to Borrower, (i) the
Initial Subsidiaries and any other corporation of which more than 50% of the
outstanding stock (other than directors' qualifying shares) having ordinary
voting power to elect a majority of its board of directors (or other governing
body), regardless of the existence at the time of a right of the holders of any
class or classes (however designated) of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or
any partnership of which more than
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50% of the outstanding partnership interests is, at the time, owned by Borrower
or by one or more Subsidiaries of Borrower, or by Borrower and one or more
Subsidiaries of Borrower, and (ii) any other entity which is controlled or
capable of being controlled by Borrower, or by one or more Subsidiaries of
Borrower, or by Borrower and one or more Subsidiaries of Borrower.
" " shall mean
, a , and its successors and
assigns.
"Swingline Account Agreement" shall mean the Financial
Management Account Investment/Commercial Loan Access Agreement, a copy of which
as in effect on the date hereof is attached hereto as Exhibit N, between
Borrower and the Swingline Lender, as amended, modified, supplemented or
replaced from time to time.
"Swingline Lender" shall mean .
"Swingline Loan Facility" shall mean the loan facility
provided by the Swingline Lender to the Borrower pursuant to Article III
hereof.
"Swingline Loan Limit" shall mean, at any time, the
amount shown as such on Annex I attached hereto (as such annex may be amended
from time to time).
"Swingline Loan Note" shall mean the Swingline Loan Note
issued by the Borrower and payable to the order of the Swingline Lender as
evidence of the Swingline Loans made hereunder and which note shall be in the
form of Exhibit A-2 attached hereto, and any extension, renewal, modification
or replacement thereof or therefor.
"Swingline Loan Rate" shall mean the higher of (x) the
rate which the Swingline Lender publicly announces from time to time to be the
Swingline Lender's prime rate, prime lending rate or base rate, as in effect
from time to time and (y) the sum of the Federal Funds Rate, as in effect from
time to time plus one-half of one percent (0.5%) per annum. The Swingline Loan
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer.
"Swingline Loans" shall mean, collectively, the advances
made by the Swingline Lender to Borrower pursuant to Section 3.01 hereof.
"Swingline Termination Date" shall mean the Business Day
which immediately precedes the Credit Expiration Date.
"Synthetic Lease Transaction" shall mean, collectively,
the loan and lease transactions arising under the Participation Agreement,
dated as of April 21, 1995, as amended, from time to time, among the Borrower,
, and and the other
Operative Documents described therein.
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"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges
of whatever nature, including without limitation income, gross receipts,
excise, property, sales, transfer, license, payroll, withholding, social
security, and franchise taxes, now or hereafter imposed or levied by the United
States of America or any state, local or foreign government or by any
department, agency or other political subdivision or taxing authority thereof
or therein and all interest, penalties, additions to tax, and other similar
liabilities with respect thereto.
"Trademark Security Agreements" shall mean any and all
Trademark Security Agreements now or hereafter executed by any Credit Party in
favor of the Agent pursuant to Section 4.05 hereof, each substantially in the
form of Exhibit C-4 attached hereto, and any modification or replacement
thereof or therefor.
" " shall mean , a
, and its successors and assigns.
"Warrant Shares" means the shares of common stock of the
Borrower issuable upon the exercise of the Warrants.
"Warrants" has the meaning set forth in Section 7.11
hereof.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.
Unless otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made, all
financial statements required to be delivered hereunder shall be prepared, and
all financial records shall be maintained in accordance with GAAP; provided,
however, that compliance with any and all financial covenants and calculations
set forth in Section 7.09 hereof, and in the definitions used in such covenants
and calculations, shall be calculated, made and applied in accordance with GAAP
as in effect on the date of this Agreement applied on a basis consistent with
the preparation of the financial statements referred to in Section 7.01 hereof
unless and until the parties hereto enter into a written amendment agreement
with respect thereto pursuant to Section 11.08 hereof.
SECTION 1.03. OTHER DEFINITIONAL TERMS; KNOWLEDGE AND
AWARENESS.
(a) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
Any pronoun used herein shall be deemed to cover all genders and all singular
terms used herein shall include the plural and vice versa. Unless otherwise
expressly indicated herein, all references herein to a period of time which
runs "from" or "through" a particular date shall be deemed to include such
date, and all references herein to a period of time which runs "to" or "until"
a particular date shall be deemed to exclude such date. Unless otherwise
defined or specified herein, all other terms used herein shall have the
meanings, if any, given such terms in the Uniform Commercial Code as in effect
on this date in the State of Georgia as the same may be hereafter amended or
supplemented from time to time.
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(b) Whenever any provision in this Agreement or any of
the other Credit Documents refers to the "knowledge" of a Person, or to any
fact or circumstance having "come to the attention" of such Person, or to such
Person having become "aware" of a fact or circumstance, or of a Person having
"learned" of a fact or circumstance, or where words of similar import are used
in this Agreement or any of the other Credit Documents with respect to a
Person's knowledge or awareness of any fact or circumstance, such words are
intended to signify that such Person either has actual knowledge of such fact
or circumstance, or has received a notice or notification of it, or from all of
the facts and circumstances known to such Person at the time in question such
Person has reason to know that the fact or circumstance in question exists, and
where such Person is a corporation or other organization, such knowledge or
awareness of such organization shall be effective for a particular transaction
or matter from the time when it is brought to the attention of the individual
within the organization who is responsible for or directly involved in
conducting that transaction or handling that matter and in any event from the
time when it would have been brought to such individual's attention if the
organization had exercised reasonable due diligence (and, for purposes hereof,
an organization exercises due diligence if it maintains reasonable routines for
communicating significant information to the individual within the organization
who is responsible for or directly involved in conducting the transaction or
handling the matter and there is reasonable compliance with such routines, but
such due diligence does not require that each and every individual acting for
an organization communicate information unless such communication is part of
such individual's regular duties or unless such individual has a reason to know
of the transaction or matter at issue and that such transaction or matter would
be materially affected by the information).
ARTICLE II.
REVOLVING LOANS
SECTION 2.01. REVOLVING LOAN COMMITMENTS; USE OF
PROCEEDS.
(a) Subject to and upon the terms and conditions set
forth in this Agreement, each Lender severally agrees, upon the Borrower's
request, to advance to the Borrower, from time to time prior to the Credit
Expiration Date, Revolving Loans in an aggregate principal amount outstanding
at any one time not to exceed such Lender's Revolving Loan Commitment as in
effect at such time (as such Revolving Loan Commitment may be reduced pursuant
to this Agreement).
(b) The proceeds of the Revolving Loans shall be used
to (i) refinance the 1993 Loans as described in Section 4.16 hereof, (ii)
finance or refinance any Acquisition made after the date hereof to the extent
consented to in writing by all of the Lenders, (iii) refinance the Swingline
Loans pursuant to Section 3.04 hereof, and (iv) finance the working capital and
general corporate needs of the Consolidated Companies; provided, however, that
(x) neither Borrower nor any Guarantor may re-advance any Revolving Loan
proceeds to any Subsidiary who is not a Guarantor and (y) Borrower's use of any
Revolving Loan proceeds to settle or satisfy certain litigation is limited to
the extent provided in Section 8.14 hereof.
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(c) Notwithstanding anything in this Agreement to the
contrary, Borrower shall not be entitled to obtain any new LIBOR Advances on or
after the date hereof. In addition, notwithstanding anything herein to the
contrary, no outstanding Borrowing may be converted into, or combined as, a
Borrowing consisting of LIBOR Advances on or after the date hereof. LIBOR
Advance provisions are contained in this Agreement solely to accommodate any
LIBOR Advances which are outstanding under the 1993 Credit Agreement as of the
date hereof and which are continued hereunder for the remainder of their
respective Interest Periods.
(d) If at any time the aggregate outstanding principal
amount of all of the Revolving Loans made by any Lender shall exceed the amount
of the Revolving Loan Commitment of such Lender, the Borrower shall immediately
upon receipt of notice thereof from the Agent or such Lender, or immediately
upon the Borrower's acquiring actual knowledge thereof, prepay the Revolving
Loans of such Lender to the extent necessary to eliminate such excess.
(e) Notwithstanding anything herein to the contrary,
the sum of the aggregate outstanding principal balance of all Loans (including
Swingline Loans) made by all Lenders (including the Swingline Lender) at any
one time shall not exceed the aggregate amount of all Revolving Loan
Commitments as then in effect, and the sum of the aggregate outstanding
principal balance of all Revolving Loans made by all Lenders at any one time
(other than any Revolving Loans the proceeds of which are used to refinance any
Swingline Loans pursuant to Section 3.04 hereof) shall not exceed (i) the
aggregate amount of the Revolving Loan Commitments as then in effect less (ii)
the Swingline Loan Limit as then in effect. If at any time the aggregate
outstanding principal balance of the Loans or the Revolving Loans exceeds the
applicable limit stated in the immediately preceding sentence, the Borrower
shall immediately upon receipt of notice thereof from the Agent or such Lender,
or immediately upon the Borrower's acquiring actual knowledge thereof, prepay
the Revolving Loans to the extent necessary to eliminate such excess.
SECTION 2.02. REVOLVING LOAN NOTES; REPAYMENT OF
PRINCIPAL AND INTEREST.
(a) The Borrower's obligation to pay to each Lender
the principal of and interest on the Revolving Loans made by such Lender shall
be evidenced by the records of the Agent and such Lender and by the Revolving
Loan Note payable to such Lender.
(b) The entire outstanding principal balance of each
Lender's Revolving Loans shall be due and payable, together with all remaining
accrued and unpaid interest thereon, on the Credit Expiration Date. Pending
such maturity, (i) accrued interest on the portion of each Lender's Revolving
Loans consisting of Base Rate Advances shall be payable to such Lender in
arrears on the first (1st) day of each calendar quarter, commencing with the
quarter following the quarter in which such Lender's initial Revolving Loan is
made and continuing to be due on the first (1st) day of each calendar quarter
thereafter, and (ii) accrued interest on the portion of each Lender's Revolving
Loans consisting of LIBOR Advances shall be payable to such Lender in arrears
on the last day of each Interest Period applicable thereto and, in the case of
any LIBOR
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Advance having an Interest Period in excess of three (3) months, on
each day which occurs every three (3) months after the initial date of such
Interest Period.
SECTION 2.03. REQUESTS FOR REVOLVING LOANS.
(a) Whenever Borrower desires to make a Borrowing of
Revolving Loans (other than one resulting from a continuation or conversion
pursuant to Section 2.03(b) below), it shall give the Agent prior written or
telecopied notice (or telephonic notice promptly confirmed in writing or by
telecopy) of such Borrowing (a "Notice of Revolving Loan Borrowing"), such
Notice of Revolving Loan Borrowing to be given prior to 11:00 a.m. (Eastern
Time) (i) on the requested date of such Borrowing in the case of Base Rate
Advances, and (ii) three Business Days prior to the requested date of such
Borrowing in the case of LIBOR Advances. Any such notices received after 11:00
a.m. shall be deemed received on the next Business Day. Each Notice of
Revolving Loan Borrowing shall be irrevocable and shall specify the principal
amount of the Borrowing (which must be in an amount of not less than $1,000,000
or a greater integral multiple of $100,000), the date of the Borrowing (which
shall be a Business Day) and (subject to Section 2.01(c) above) whether the
Borrowing is to consist of Base Rate Advances or LIBOR Advances (and, in the
latter case, the Interest Period to be applicable thereto). If the Borrower
shall fail to specify in any Notice of Revolving Loan Borrowing (x) an
applicable Interest Period in the case of a LIBOR Advance, then such notice
shall be deemed to be a request for an Interest Period of one month, or (y)
whether such Borrowing shall consist of Base Rate Advances or LIBOR Advances,
then such notice shall be deemed to be a request for Base Rate Advances
hereunder. Each Notice of Revolving Loan Borrowing shall be given by the
Borrower's chief financial officer, vice president-finance or treasurer or such
other Person who may be expressly and specifically designated in writing by any
of such officers at such time to be a representative of the Borrower with
authority to give Notices of Revolving Loan Borrowing on behalf of the
Borrower. The Agent and the Lenders shall have no liability to the Borrower or
any of its Subsidiaries for refusing to honor any Notice of Revolving Loan
Borrowing (or purported Notice of Revolving Loan Borrowing) given by any Person
who the Agent is not satisfied is so authorized to give any such notice.
(b) Subject to the provisions of Section 2.01(c)
above, whenever the Borrower desires to convert all or a portion of any
outstanding Borrowing under the Revolving Loan Commitments consisting of Base
Rate Advances into a Borrowing consisting of LIBOR Advances, or to continue
outstanding any Borrowing under the Revolving Loan Commitments consisting of
LIBOR Advances for a new Interest Period, the Borrower shall give the Agent at
least three (3) Business Days' prior written or telecopied notice (or
telephonic notice promptly confirmed in writing or by telecopy) of each such
Borrowing to be converted into or continued as LIBOR Advances. Such notice (a
"Notice of Revolving Loan Conversion/Continuation") shall be given prior to
11:00 a.m. (Eastern Time) on the date specified above, and any such notice
received after 11:00 a.m. shall be deemed received on the next Business Day.
Each such Notice of Revolving Loan Conversion/Continuation shall be irrevocable
and shall specify the aggregate principal amount of the Borrowing to be
converted or continued (which must meet Section 2.01(c)'s minimum amount
requirements), the date of the requested conversion or continuation, whether
the Borrowing is being converted into or continued as LIBOR Advances and the
Interest
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Period to be applicable thereto. If upon the expiration of any
Interest Period in respect of any Borrowing consisting of LIBOR Advances the
Borrower shall have failed to deliver a Notice of Revolving Loan
Conversion/Continuation with respect thereto, the Borrower shall be deemed to
have elected to convert or continue such Borrowing as a Borrowing consisting of
Base Rate Advances hereunder. If the Borrower shall fail to specify in any
Notice of Revolving Loan Conversion/Continuation (i) an applicable Interest
Period with respect thereto, then such notice shall be deemed to be a request
for an Interest Period of one month or (ii) whether or not the Borrowing is
being converted into or continued as a LIBOR Advance, then such notice shall be
deemed to be a request for a Base Rate Advance hereunder. So long as any
Default or Event of Default shall have occurred and be continuing, no Borrowing
may be converted into or continued as (upon the expiration of the current
Interest Period applicable thereto) a LIBOR Advance. No conversion of any
Borrowing of LIBOR Advances shall be permitted except on the last day of the
Interest Period in respect thereof. Each Notice of Revolving Loan
Conversion/Continuation shall be given by a representative of Borrower who is
authorized to give Notices of Revolving Loan Borrowing on behalf of Borrower
pursuant to Section 2.03(a) above. The Agent and the Lender shall have no
liability to the Borrower or any of its Subsidiaries for refusing to honor any
Notice of Revolving Loan Conversion/Continuation (or purported Notice of
Revolving Loan Conversion/Continuation) given by any Person who the Agent is
not satisfied is so authorized to give any such notice.
(c) The Agent shall promptly (and in any event by the
close of its business on the date of its receipt thereof) give each Lender
notice by telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the Agent pursuant
to this Section 2.03 with respect to the Revolving Loan Commitments.
SECTION 2.04. DISBURSEMENT OF REVOLVING LOANS; SEVERAL
REVOLVING LOAN COMMITMENTS.
(a) No later than 12:00 p.m. (Eastern Time) on the
date of each Borrowing of Revolving Loans (other than resulting from the
continuation or conversion pursuant to Section 2.03(b) hereof and subject to
the provisions of Section 4.16(b) below), each Lender will make available its
pro rata share of the amount of such Borrowing in Dollars and in immediately
available funds to the Agent, and the Agent, in turn, will make available to
the Borrower the amount so made available by such Lender by depositing such
amounts to the account of the Borrower with the Agent or by otherwise making
the amount available to the Borrower as specified in the Notice of Revolving
Loan Borrowing therefor.
(b) Unless the Agent shall have been notified by any
Lender prior to the date of a Borrowing of Revolving Loans that such Lender
does not intend to make available to the Agent such Lender's portion of the
Revolving Loans to be advanced on such date, the Agent may assume that such
Lender has made such amount available to the Agent on such date and the Agent
may make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Lender
on the date of such advance, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate. If such Lender does not pay such corresponding
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amount forthwith upon the Agent's demand therefor, the Agent shall promptly
notify the Borrower, and the Borrower shall within two (2) Business Days after
receiving such notice pay such corresponding amount to the Agent together
with interest until so repaid at the interest rate then in effect for Base
Rate Advances. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fulfill its Revolving Loan Commitments
hereunder or to prejudice any rights which the Agent, any other Lender or
the Borrower may have against any Lender as a result of any default by such
Lender hereunder.
(c) All Borrowings of Revolving Loans under this
Agreement from each Lender shall constitute part of a single loan transaction
between Borrower and such Lender.
(d) Except as provided in Section 4.16(b) below, all
Revolving Loans shall be made by the Lenders on the basis of their respective
Pro Rata Shares of the Revolving Loan Commitments. No Lender shall be
responsible for any default by any other Lender in its obligations hereunder to
fund Revolving Loans, but each Lender shall remain obligated to make the
Revolving Loans otherwise required to be made by it hereunder regardless of the
failure of any other Lender to fulfill its obligations hereunder.
SECTION 2.05. VOLUNTARY REDUCTIONS IN REVOLVING LOAN
COMMITMENTS. Upon at least one (1) Business Day's prior written notice to the
Agent and each Lender, Borrower may, at its option, terminate the Revolving
Loan Commitments of all Lenders in full or reduce all of the Lenders' Revolving
Loan Commitments in increments of not less than $1,000,000 or any greater
integral multiple of $100,000; provided, however, that (i) the amount of any
such partial reduction shall be applied on a pro rata basis to all of the
Lenders' Revolving Loan Commitments, (ii) the aggregate outstanding principal
balance of all of the Lenders' Loans or Revolving Loans shall not exceed any
applicable limit specified in Section 2.01(d) or (e) hereof after giving effect
to any such termination or reduction (and Borrower shall immediately prepay any
such Loans to the extent necessary to eliminate such excess as required under
Section 2.01(d) or (e) above), and (iii) any such termination or reduction
shall be irrevocable. In the event any such termination or reduction is made
by Borrower in accordance with this Section 2.05, the Agent will promptly issue
to Borrower and each Lender a revised Annex I to this Agreement reflecting such
termination or reduction, which revised Annex I shall supersede and replace the
prior version thereof and shall be substituted by each party in lieu thereof.
SECTION 2.06. MANDATORY PREPAYMENTS AND MANDATORY
REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(a) If on any date shown below the aggregate amount of
the Revolving Loan Commitments exceeds the dollar amount set forth below
opposite such date, the aggregate amount of the Revolving Loan Commitments
shall be automatically and permanently reduced on such date by an amount such
that, after giving effect to such reduction, the aggregate amount of the
Revolving Loan Commitments shall equal the dollar amount set forth below
opposite such date:
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Maximum Revolving
Date Loan Commitments
---- -----------------
July 31, 1997 $200,000,000
January 31, 1998 $150,000,000
Notwithstanding anything herein to the contrary, the Required Lenders may
extend the July 31, 1997 Revolving Loan Commitment reduction to a date no later
than September 30, 1997 as provided for in Section 11.08 hereof.
(b) On the date of the closing of any Material
Subsidiary Asset Sale (or if such date is not a Business Day, on the
immediately following Business Day) and on the fifth (5th) Business Day after
the end of each fiscal quarter in which any Other Asset Sale is closed, a
mandatory prepayment shall be made by Borrower on all of the Loans in an amount
equal to 100% of the Net Proceeds of such Asset Sale.
(c) In the case of any and all Material Subsidiary
Asset Sales closed after the date of this Agreement, the aggregate amount of
the Revolving Loan Commitments shall be automatically and permanently reduced
by an amount equal to 100% of the aggregate Net Proceeds of such Material
Subsidiary Asset Sales. Each such reduction shall be effective on the date
that the related Material Subsidiary Asset Sale is closed.
(d) In the case of any and all Other Asset Sales, no
mandatory reduction in the Revolving Loan Commitments shall be required
hereunder until the aggregate amount of the Net Proceeds of the Other Asset
Sales closed in any particular fiscal quarter of the Borrower exceeds
$5,000,000 in the case of the fiscal quarter ending March 31, 1997 and $500,000
in the case of each succeeding fiscal quarter (the applicable amount for any
particular quarter being herein called the "Base Amount"), and thereafter the
aggregate amount of the Revolving Loan Commitments shall be automatically and
permanently reduced by the amount by which the aggregate amount of the Net
Proceeds of all Other Asset Sales closed in such quarter exceeds the Base
Amount for such quarter, which reduction shall be effective on the tenth (10th)
Business Day after the end of such quarter.
(e) Any reduction of the Revolving Loan Commitments
required under this Section shall apply as a proportional and permanent
reduction of the Revolving Loan Commitments of each of the Lenders. If the
aggregate outstanding principal balance of the Loans or the Revolving Loans
exceeds any applicable limit specified in Section 2.01(d) or (e) hereof after
giving effect to any such reduction of the Revolving Loan Commitments, Borrower
shall immediately prepay such Loans to the extent necessary to eliminate such
excess.
(f) In the event any mandatory reduction in the
Revolving Loan Commitments is made in accordance with this Section, the Agent
will issue to the Borrower and each Lender a revised Annex I to this Agreement
reflecting such reduction, which revised Annex
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I shall supersede and replace the prior version thereof and shall be
substituted by each party in lieu thereof.
ARTICLE III
SWINGLINE LOANS
SECTION 3.01. SWINGLINE LOANS; USE OF PROCEEDS, ETC.
(a) As an integral part of the transactions
contemplated hereby, and subject to and upon the terms and conditions set forth
in this Agreement, the Swingline Lender shall make, upon Borrower's request,
Swingline Loans to the Borrower from time to time prior to the Swingline
Termination Date (or any earlier date on which the Revolving Loan Commitments
expire or are terminated hereunder) in an aggregate principal amount
outstanding at any one time not to exceed the Swingline Loan Limit. The
Swingline Lender will, on request by the Agent, confirm to the Agent the
aggregate outstanding principal balance of the Swingline Loans from time to
time.
(b) The proceeds of the Swingline Loans shall be used
for the same purposes for which Borrower could obtain Revolving Loans
hereunder.
(c) All Swingline Loans shall bear interest at the
Swingline Loan Rate plus the Applicable Margin with respect thereto.
(d) So long as is the
Swingline Lender, and so long as the Swingline Account Agreement has not
been terminated pursuant to Section 7.B thereof, all Swingline Loans shall be
requested or deemed requested by Borrower pursuant to the Swingline Account
Agreement and all Borrowings of the Swingline Loans under this Agreement shall
be made in accordance with the Swingline Account Agreement.
SECTION 3.02. SWINGLINE LOAN NOTE; REPAYMENT OF
PRINCIPAL AND INTEREST.
(a) The Borrower's obligation to pay the Swingline
Lender the principal of and interest on the Swingline Loans shall be evidenced
by the records of such Lender and by the Swingline Loan Note payable to such
Lender.
(b) In addition to any principal payment or prepayment
which may be required at any time under Section 2.01 or 2.06 hereof, and
subject to any acceleration of maturity pursuant to Section 9.02 hereof, the
aggregate outstanding principal balance of the Swingline Loans, together with
all unpaid accrued interest thereon, shall be due and payable in full on the
Swingline Termination Date. Pending such maturity, accrued interest on the
Swingline Loans shall be payable to the Swingline Lender in arrears on the
first (1st) day of each calendar month, commencing with the month following the
month in which such Lender's initial Swingline Loan is made, and continuing to
be due on the first (1st) day of each month thereafter.
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SECTION 3.03. EXCESS SWINGLINE LOANS. If at any time
the aggregate outstanding principal amount of all of the Swingline Loans shall
exceed the amount of the Swingline Loan Limit then in effect, the Borrower
shall immediately upon receipt of notice thereof from the Agent or any Lender,
or immediately upon the Borrower's acquiring actual knowledge thereof, prepay
the Swingline Loans to the extent necessary to eliminate such excess.
SECTION 3.04. REFINANCINGS OF SWINGLINE LOANS. If and
to the extent that any Swingline Loan made in accordance with the terms hereof
is not repaid when due, or if requested by the Swingline Lender upon the
occurrence of any Event of Default (which request shall be deemed made upon the
occurrence of any Event of Default described in Section 9.01(ii) or (iii)
hereof), and notwithstanding any other provisions of this Agreement to the
contrary, there shall occur a deemed request by the Borrower for the
disbursement by all of the Lenders of Revolving Loans (according to each
Lender's respective Pro Rata Share thereof determined prior to any termination
of the Revolving Loan Commitments pursuant to Section 9.02 hereof) equal to the
aggregate principal balance of the Swingline Loans then outstanding, and each
Lender shall pay to the Swingline Lender, upon written request therefor by and
for the account of the Swingline Lender, an amount equal to the principal
amount of the then-outstanding Swingline Loans multiplied by such Lender's Pro
Rata Share (determined as provided above), which amount shall be considered an
outstanding Revolving Loan made by such Lender (including )
to Borrower. If such request is made on any Business Day by the
Swingline Lender by 11:00 a.m. (Eastern Time) on such day, each Lender's
payment thereof shall be made to the Swingline Lender in immediately available
funds by 1:00 p.m. (Eastern Time) on the same Business Day (but if such request
is made after 11:00 a.m., Eastern Time, on such Business Day, then each
Lender's payment thereof shall be made to the Swingline Lender in immediately
available funds by 10:00 a.m., Eastern Time, on the immediately following
Business Day), and if such payment is not in fact made available to the
Swingline Lender by any Lender by such deadline, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender together with
interest thereon until so received at the Federal Funds Rate. Each Lender
(other than the Swingline Lender) hereby irrevocably agrees to make its Pro
Rata Share of the aforesaid Revolving Loans, in the manner specified in this
paragraph, notwithstanding that the amount of such Revolving Loans may not
satisfy any minimum borrowing requirement specified elsewhere in this
Agreement, or that all of the conditions specified in Section 5.02 hereof have
not been satisfied or shall not exist at such time, or that a Default or Event
of Default then exists, or that on the date of such Revolving Loans the
Revolving Loan Commitments have terminated or that the Borrower is otherwise
not entitled to obtain any Revolving Loans hereunder; provided, however, that
under no circumstances shall any Lender be obligated to make any Revolving
Loans under this Section 3.04 if after giving effect thereto, the aggregate
outstanding principal balance of the Revolving Loans made by such Lender would
exceed the amount of its Revolving Loan Commitment (as determined prior to any
termination thereof under Section 9.02 hereof).
SECTION 3.05. PURCHASE AND SALE OF PARTICIPATION
INTERESTS IN SWINGLINE LOANS. In the event that any Lender is prevented from
making a Revolving Loan required to be made under Section 3.04 above on the
date otherwise required under such Section (including, without limitation, as a
result of the commencement of any proceeding under the Bankruptcy Code with
respect to the Borrower or any other Credit Party), then such Lender shall
forthwith
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purchase (as of the date such Revolving Loan would otherwise be required to be
made, but adjusted for any payments received by the Swingline Lender from or on
behalf of the Borrower on or after such date and prior to such purchase) from
the Swingline Lender such participation interest in the outstanding Swingline
Loans as shall be necessary to cause such Lender to share in such Swingline
Loans ratably based upon its Pro Rata Share (determined before giving effect to
any termination of the Revolving Loan Commitments pursuant to Section 9.02
hereof); provided, however, that (i) all interest payable on the Swingline
Loans shall be for the account of the Swingline Lender until the date as of
which the Revolving Loans to refinance the same are requested in writing by the
Swingline Lender under Section 3.04 above, (ii) at the time any purchase of any
participation interest pursuant to this Section is actually made, the
purchasing Lender shall be required to pay to the Swingline Lender interest on
the principal amount of the participation interest purchased for each day from
and including the day upon which such Revolving Loans would otherwise have been
made as requested in writing by the Swingline Lender under Section 3.04 above
to but excluding the date of payment for such participation interest, at a rate
per annum equal to the Federal Funds Rate, and (iii) under no circumstances
shall any Lender be obligated to purchase from the Swingline Lender
participation interests under this Section 3.05 if after giving effect thereto,
the aggregate outstanding principal balance of (a) the Revolving Loans made by
such Lender plus (b) the participation interests purchased by such Lender from
the Swingline Lender hereunder exceed the amount of such Lender's Revolving
Loan Commitment (as determined prior to any termination thereof under Section
9.02 hereof).
ARTICLE IV.
GENERAL CREDIT TERMS
SECTION 4.01. CREDIT EXPIRATION DATE; EXTENSIONS. Each
Lender's obligation hereunder to make any Loans shall expire on the Credit
Expiration Date. If requested to do so by the Borrower, all of the Lenders
may, in their sole discretion (which must be exercised unanimously pursuant to
Section 11.08(a)(iv) hereof), grant one or more successive extensions of the
Credit Expiration Date, and, in the event any such extension is requested by
Borrower and granted by the Lenders, the Agent shall issue to the Borrower and
each of the Lenders a written notification of such extension (any Lender's
failure to respond affirmatively to any such extension request shall be
considered to be a denial thereof). Notwithstanding anything herein or in any
other Credit Documents to the contrary, each Lender may grant or withhold its
consent to any requested extension of the Credit Expiration Date in its sole
and absolute discretion and none of the Lenders shall be under any obligations
(either express or implied) to grant any such extension.
SECTION 4.02. INTEREST.
(a) The Borrower agrees to pay interest in respect of
all unpaid principal amounts of the Revolving Loans from the respective dates
such principal amounts were advanced until the respective dates such principal
amounts are repaid at a rate per annum equal to the applicable rate indicated
below:
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(i) For Base Rate Advances -- the Base Rate in effect
from time to time plus the Applicable Margin with respect
thereto; and
(ii) For LIBOR Advances -- the relevant Adjusted LIBOR
plus the Applicable Margin with respect thereto.
(b) The Borrower also agrees to pay interest in
respect of all unpaid principal amounts of the Swingline Loans from the
respective date such principal amounts were advanced until the respective dates
such principal amounts are repaid at a rate per annum equal to the Swingline
Loan Rate in effect from time to time plus the Applicable Margin with respect
thereto.
(c) After the occurrence and during the continuation
of any Event of Default, the outstanding principal balance of the Obligations
(and, to the extent permitted by applicable law, all accrued interest thereon)
shall bear interest at a rate per annum equal to two percentage points (2.0%)
above the otherwise applicable rate under paragraph (a) above.
(d) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date of any repayment
thereof; provided, however, if a Loan is repaid on the same day it is made, one
day's interest shall be paid on such Loan.
(e) The Agent, upon determining the Adjusted LIBOR for
any Interest Period, shall promptly notify by telephone (confirmed in writing)
or in writing the Borrower and the other Lenders thereof. Any such
determination shall, absent manifest error, be final, conclusive and binding
for all purposes.
SECTION 4.03. FEES.
(a) In consideration of each Lender's entering into
this Agreement, the Borrower shall pay to the Agent (for the account of and
distribution to such Lender), in immediately available funds on the date of the
initial Loans hereunder, a Facility Fee in an amount equal to one percent
(1.0%) of the total amount of such Lender's initial Revolving Loan Commitment,
which fee shall be non-refundable and shall be deemed fully earned upon the
Agent's and the Lenders' execution and delivery of this Agreement and the
making of the initial Loans hereunder.
(b) In consideration of the Lenders' making their
respective Revolving Loan Commitments hereunder available to the Borrower, the
Borrower agrees to pay to the Agent (for the account of and distribution to the
Lenders in accordance with their respective Pro Rata Shares) in immediately
available funds a non-refundable Commitment Fee from the date of this Agreement
to the date of the Credit Expiration Date computed on the daily average unused
portion of the Revolving Loan Commitments in effect during the period from
which such payment is made (as such Revolving Loan Commitments may be reduced
pursuant to this Agreement), at a rate per annum equal to one-half of one
percent (0.50%), which Commitment Fee shall be payable by Borrower to the Agent
(for the account of the Lenders as aforesaid)
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quarterly in arrears commencing on the first (1st) day of the first (1st)
calendar quarter following the date of this Agreement and continuing to be due
on the first (1st) day of each calendar quarter thereafter so long as the
Revolving Loan Commitments are in effect as well as on the Credit Expiration
Date. For purposes of this paragraph (b), Swingline Loans shall not constitute
a usage of the Revolving Loan Commitment of the Swingline Lender or any other
Lender.
(c) Borrower also shall pay to the Agent (for its own
account) in immediately available funds a periodic Agent Fee in the amount and
at the times previously agreed in writing by the Borrower with the Agent (which
agreement shall survive the execution and delivery of this Agreement and the
making of the Loans).
(d) No Facility Fee, Commitment Fee or Agent Fee
payable hereunder is, or shall be deemed to be, interest or a charge for the
use of money, but rather shall constitute an "other charge" within the meaning
of O.C.G.A. Section 7-4-2(a)(1).
SECTION 4.04. PAYMENTS, PREPAYMENTS AND COMPUTATIONS.
(a) Except as may be otherwise specifically provided
herein, all payments by the Borrower with respect to the Loans or any other
Obligations under this Agreement or any of the other Credit Documents shall be
made without defense, set-off or counterclaim to the Agent not later than 11:00
a.m. (Eastern Time) on the date when due and shall be made in lawful money of
the United States of America in immediately available funds.
(b) Whenever any payment to be made hereunder or under
any of the Notes or the other Credit Documents shall be stated to be due on a
day which is not a Business Day, the due date thereof (except as otherwise set
forth herein with respect to LIBOR Advances) shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the applicable rate during such extension.
(c) All computation of interest or fees due hereunder
or under any of the other Credit Documents shall be made on the basis of a year
of 360 days and the actual number of days elapsed.
(d) Any of the Loans may be prepaid in whole or in
part at any time without premium or penalty; provided, however, that:
(i) Any prepayment made on any Loan shall be applied,
first, to interest accrued thereon through the date thereof
and then to the principal balance thereof;
(ii) Any prepayment of any one type of Loans shall be
applied to all of the Lenders' Loans of that type in
accordance with their respective pro rata shares thereof;
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(iii) Any prepayment of the LIBOR Advances made at any
one time must be in an aggregate principal amount of not less
than $2,000,000 or any greater integral multiple of $500,000,
and any prepayment of the Base Rate Advances made at any one
time must be in an aggregate principal amount of not less than
$1,000,000 or any greater integral multiple of $100,000;
provided, however, that the aforesaid minimum principal
prepayment requirements shall not apply to prepayments of the
Swingline Loans;
(iv) A prepayment of a LIBOR Advance may be made
without penalty by Borrower only on the last day of the
Interest Period applicable thereto and, if any such prepayment
is made on the day that is not the last day of the applicable
Interest Period, Borrower shall pay to the Agent, for the
account of the Lender who made such LIBOR Advance and upon
demand if requested by such Lender, such additional
compensation as may be required under Section 4.11 hereof; and
(v) If, at the time a Lender receives a principal
prepayment on any one type of its Loans hereunder, such Lender
has both Base Rate Advances and LIBOR Advances outstanding
with respect to such Loans, such prepayment shall be applied
as directed in writing by the Borrower, but in the absence of
such direction such prepayment shall be applied, first, to
prepay such Base Rate Advances and then to prepay such LIBOR
Advances (with the portion allocated to LIBOR Advances to be
applied to those having the Interest Periods first maturing
unless otherwise directed in writing by the Borrower).
(e)(i) All payments to the Agent or any Lender under
this Agreement, the Notes or any other Credit Document shall be made free and
clear of and without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or any other Credit Documents or any payments of
principal, interest, fees or other amounts payable hereunder or thereunder (but
excluding, except as provided in paragraph (ii) hereof, any Taxes imposed on
the overall net income of any Lender). If any Taxes are so levied or imposed
on any Lender or the Agent, Borrower agrees (x) to pay to such Lender or the
Agent the full amount of such Taxes and such additional amounts as may be
necessary (as specified in such Lender's or the Agent's certificate, described
in the last sentence of this paragraph (i), delivered to the Borrower) so that
every net payment of all amounts due hereunder and under the Notes and the
other Credit Documents from the Borrower, after withholding or deduction for or
on account of such Taxes (including any additional sum payable under this
Section), will not be less than the full amount provided for herein had no such
deduction or withholding been required, (y) to make such withholding or
deduction and (z) to pay the full amount deducted to the relevant government
authority in accordance with applicable law. Borrower will furnish to the
Agent, within thirty (30) days after the date payment of any Taxes is due
pursuant to applicable law, certified copies of tax receipts evidencing such
payment by the Borrower. Borrower will indemnify and hold harmless the Agent
and each of the Lenders and reimburse the Agent and each of the Lenders upon
written request for the amount of any Taxes described in the first sentence of
this paragraph (i) and which are so levied and imposed and paid by the Agent or
such Lender and any liability (including penalties, interests and expenses)
arising therefrom or with respect thereto. A
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certificate as to the amount of such payment by the Agent or any Lender,
absent manifest error, shall be final, conclusive and binding for all purposes.
(ii) Borrower also shall reimburse the Agent and each
Lender, upon request of the Agent or such Lender, for any Taxes imposed on the
overall net income of the Agent or such Lender in respect of any amounts paid
by or on behalf of Borrower to or on behalf of the Agent or such Lender
pursuant to paragraph (i) of this subsection (e).
(iii) Each Lender that is organized under the laws of
any jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to the Borrower and the
Agent, prior to the time it becomes a Lender hereunder, two copies of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 or any successor forms thereto (wherein such Lender claims entitlement to
complete exemption from or a reduced rate of U.S. Federal withholding tax on
interest paid by the Borrower hereunder) and to provide to the Borrower and the
Agent a new Form 4224 or Form 1001 or any successor forms thereto if any
previously delivered form is found to be incomplete or incorrect in any
material respect or upon the obsolescence of any previously delivered forms;
provided, however, that no Lender shall be required to furnish a form under
this paragraph (iii) if it is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law. A Lender that is not
entitled to claim an exemption from or a reduced rate of withholding under
applicable law, promptly upon written request of the Borrower, shall so inform
the Borrower and the Agent in writing.
SECTION 4.05. COLLATERAL AND GUARANTIES.
(a) The Obligations shall be guaranteed by all the
present and future Domestic Subsidiaries of the Borrower pursuant to the
Guaranty Agreement.
(b) Subject to the terms and conditions of the Post
Closing Requirements Agreement, the Obligations also shall be secured by all
Collateral covered by the Real Estate Collateral Documents and the Security
Agreements; provided, however, that so long as no Event of Default is then in
existence, Borrower and its Domestic Subsidiaries shall not be required to
deliver to the Agent or any Lender any instrument or chattel paper having an
outstanding principal balance of less than $500,000 (other than instruments or
chattel paper evidencing Intercompany Loans which shall be required to be
delivered to the Agent). The Borrower and its Domestic Subsidiaries also shall
execute and deliver any and all financing statements, fixture filings, notice
filings and such other documents as the Agent may reasonably request from time
to time in order to perfect or maintain the perfection of the Agent's Lien
under such Security Documents.
(c) The Obligations also shall be secured pursuant to
the Pledge Agreements by the perfected pledge and collateral assignment to the
Agent of (i) all of the issued and outstanding shares of the capital stock of
all the present and future direct or indirect Domestic Subsidiaries of the
Borrower and (ii) sixty-six percent (66%) (or such lesser percentage as may be
owned) of the issued and outstanding shares of the capital stock of each of the
present or
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future direct or indirect Foreign Subsidiaries of the Borrower. In any such
case, Borrower shall, or in the case of any indirect Subsidiary Borrower shall
cause the direct parent company of such Domestic Subsidiary or Foreign
Subsidiary to, execute and deliver a Pledge Agreement in favor of the Agent
together with any and all financing statements, stock certificates, undated
blank stock transfer powers and such other documents as the Agent may from time
to time reasonably request in order to perfect or maintain the perfection of
the Agent's Liens under such Pledge Agreement.
(d) Without limiting the generality of the foregoing,
Borrower and each Domestic Subsidiary shall execute and deliver to the Agent
the Copyright Assignments and the Trademark Security Agreements to secure the
Obligations as well as such other documents as the Agent may reasonably require
in order to perfect and maintain the perfection of the Agent's Liens on any and
all Collateral covered thereby.
(e) In the event that any Person shall become a
Subsidiary of Borrower after the date hereof, and if and to the extent required
by the Required Lenders under Section 7.10 hereof, Borrower shall execute (or
cause such other Subsidiary as may be the direct parent company of the new
Subsidiary to execute) an amendment or supplement to the appropriate Pledge
Agreement sufficient to subject the stock of such new or additional Subsidiary
to the Lien of such Pledge Agreement, and Borrower also shall cause each new or
additional Subsidiary which is a Domestic Subsidiary to execute an amendment or
supplement to each of the Guaranty Agreement so as to become a Guarantor
thereunder and the appropriate Security Agreement so as to subject all of its
personal property to the Lien thereof as well as any and all financing
statements and other documents as the Agent may reasonably request from time to
time in order to perfect or maintain the perfection of the Agent's Liens
thereunder.
(f) Borrower shall use commercially reasonable efforts
to cause the lessors of the facilities of the Borrower and its Domestic
Subsidiaries listed on Schedule 2 to the Post Closing Requirements Agreement,
and the lessors of such comparable facilities as the Required Lenders may
reasonably deem appropriate in the future for any new Domestic Subsidiary or
operations hereafter acquired or established to execute Lessor Waivers and
Consents in favor of the Agent. All deposit accounts of the Borrower and each
of its Domestic Subsidiaries listed on Schedule 3 to the Post Closing
Requirements Agreement shall be either (1) maintained after February 28, 1997
(or, with the written consent of the Required Lenders, March 31, 1997), with
one or more of the following: (i) the Agent, (ii) the Swingline Lender, (iii)
any other Lender, and/or (iv) any other commercial bank which (x) is not a
creditor of the Borrower or any such Subsidiary (other than in connection with
the relevant deposit account or accounts) and (y) has executed and delivered to
the Agent a Pledged Deposit Agreement with the Agent and the appropriate Credit
Party, or (2) closed on or before the applicable deadline specified above.
Notwithstanding anything herein or in any other Credit Document to the
contrary, Borrower's and its Domestic Subsidiaries' obligations hereunder and
under the other Credit Documents to obtain any Lessor Waivers and Consents with
respect to any offices or facilities leased by Borrower or any of its Domestic
Subsidiaries on the date hereof or any Pledged Deposit Agreements with respect
to any deposit accounts maintained by Borrower or any of its Domestic
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Subsidiaries on the date hereof shall be subject to the terms and conditions of
the Post-Closing Requirements Agreement.
(g) In the event that after the date of this Agreement
the Borrower or any of its Domestic Subsidiaries acquires ownership of any
additional real property (other than real property leased by it as a lessee) or
any additional United States patents, registered trademarks, registered service
marks, federally-registered copyrights or any applications thereof, the
Borrower shall promptly give written notice of such acquisition to the Agent,
and if requested by the Agent at the direction of the Required Lenders,
Borrower shall execute and deliver (or cause such Subsidiary to execute and
deliver) any and all Real Estate Collateral Documents or collateral
assignments, security agreements, pledge agreements, financing statements,
fixture filings, notice filings or other documents as the Agent may reasonably
request from time to time in order for the Agent to acquire a Lien on the
property so acquired by such Credit Party as additional security for the
Obligations or to perfect or maintain the perfection of such Lien.
SECTION 4.06. CAPITAL ADEQUACY. Without limiting any
other provisions of this Agreement, in the event that any Lender determines
after the date hereof that the introduction or change after the date of this
Agreement of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy, or any change
therein or in the interpretation or application thereof after the date of this
Agreement, or compliance by any Lender with any request or directive regarding
capital adequacy (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) from a central bank or
governmental authority or body having jurisdiction which is introduced or
changed after the date of this Agreement, does or shall have the effect of
reducing the rate of return on such Lender's capital as a consequence of its
obligations hereunder to a level below that which such Lender could have
achieved but for such law, treaty, rule, regulation, guideline or order or such
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy and assuming the full utilization of such Lender's
capital immediately before such adoption, change or compliance) by an amount
reasonably deemed by such Lender to be material, then such Lender shall
promptly after its determination of such occurrence notify the Borrowers and
the Agent thereof. The Borrower agrees to pay to the Agent, for the account of
such Lender, as an additional fee from time to time, within ten (10) days after
written notice and demand by such Lender, such amount as such Lender certifies
to be the amount that will compensate it for such reduction in connection with
its obligations hereunder. A certificate of such Lender claiming compensation
under this Section 4.06 shall be conclusive in the absence of manifest error
and shall set forth the nature of the occurrence giving rise to such
compensation, the additional amount or amounts to be paid to it hereunder and
the method by which such amounts were determined. In determining such amount,
the Lender involved may use reasonable averaging and attribution methods.
SECTION 4.07. UNAVAILABILITY. If (i) any Lender
determines that the making or maintenance by it of any LIBOR Advance hereunder
would violate any applicable law, rule or regulation or the interpretation or
application thereof (whether or not have the force of law), or (ii) any Lender
determines that deposits of a type and maturity appropriate to fund interest
rate options and Interest Periods hereunder are not available in the London
interbank market or that
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Adjusted LIBOR does not fully reflect such Lender's cost of maintaining
particular interest rate options and/or Interest Periods hereunder, then the
availability of the Adjusted LIBOR-based interest rate option and/or Interest
Periods hereunder may be suspended by such Lender (by written notice to the
Borrower and the Agent) for new Interest Periods until such time as market
conditions or legal considerations permit it to be reinstated.
SECTION 4.08. INCREASED COSTS. If, due to either (i)
the introduction of or any change (other than a change by way of imposition of
or increase in reserve requirements already included in computing the Adjusted
LIBOR) in or in the interpretation of any law or regulation after the date
hereof or (ii) the compliance with any guideline or request from any central
bank or other governmental authority issued after the date hereof (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining any LIBOR Advance
hereunder, then within ten (10) days after written notice and demand by such
Lender, Borrower shall from time to time pay to the Agent (for the account of
such Lender) additional amounts as are sufficient to compensate such Lender for
such increased cost. Each such notice and demand shall be accompanied by a
certificate of such Lender setting forth in reasonable detail the basis for
computing the additional amount claimed by such Lender, and each such
certificate shall, in the absence of manifest error, be conclusive evidence of
the amount of such cost.
SECTION 4.09. SHARING OF PAYMENTS, ETC. If any Lender
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, from proceeds of Collateral or otherwise) on account
of the Obligations owing to it (other than (i) pursuant to Section 4.03, 4.06,
4.08 or 4.16(b) hereof, (ii) payments or prepayments of principal or interest
on any of the Swingline Loans received by the Swingline Lender or (iii)
payments of Cash Management Services Obligations) in excess of its ratable
share of payments on account of the Obligations obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations
in the Obligations owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (x) the amount of such
Lender's required payment to (y) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 4.09 may, to the fullest extent permitted by law,
exercise all of its rights of payment (including any right of set-off or
banker's lien) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
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SECTION 4.10. LOAN ACCOUNTS.
(a) Each Lender shall open and maintain on its books a
separate loan account in the name of the Borrower and each such loan account
shall show as debits thereto such Lender's Loans made to the Borrower under
this Agreement and as credits thereto all payments received by such Lender and
applied thereto so that the balance of the loan account of the Borrower with
each Lender at all times shall reflect the principal amount of the Loans then
outstanding from such Lender to the Borrower.
(b) The Agent shall maintain on its books a control
account for the Borrower in which shall be recorded (i) the amount of each
Revolving Loan made hereunder to the Borrower, (ii) the amount of any
principal, interest or fees due or to become due from the Borrower on the
Revolving Loans, and (iii) the amount of any sum received by the Agent
hereunder in respect of any such principal, interest or fees due on the
Revolving Loans and each Lender's share thereof.
(c) The entries made in the accounts pursuant to
paragraph (a) or (b) above shall be prima facie evidence, in the absence of
manifest error, of the existence and amounts of the Obligations of the Borrower
therein recorded and any payments thereon, and in case of discrepancy between
such accounts, in the absence of manifest error, the control account maintained
by the Agent pursuant to paragraph (b) above shall be controlling with respect
to Revolving Loans and the account maintained by the Swingline Lender, with
respect to the Swingline Loans pursuant to paragraph (a) above shall be
controlling with respect to the Swingline Loans.
(d) The Agent on behalf of the Lenders shall account
to the Borrower (with a copy to each Lender) on a monthly basis with a
statement of borrowings, charges, and payments made pursuant to this Agreement
with respect to the Revolving Loans and the Revolving Loan Commitments, and
each such account rendered by the Agent shall be deemed final, binding and
conclusive unless the Agent is notified by the Borrower or any Lender in
writing within thirty (30) days after the date the account is so rendered that
the Borrower or such Lender disputes any item thereof (but any such notice by
the Borrower or any Lender shall be deemed an objection only to those items
specifically set forth in such notice). Failure by the Agent to render any
such account shall in no way affect its or any Lender's rights hereunder or
under any of the other Credit Documents.
(e) The Swingline Lender also shall account to the
Borrower on a monthly basis with a statement of borrowings, charges and
payments made pursuant to this Agreement with respect to the Swingline Loans
and the Swingline Loan Limit, and each such statement rendered by the Swingline
Lender shall be deemed final, binding and conclusive unless the Swingline
Lender is notified by the Borrower in writing within thirty (30) days after the
date the account is so rendered that the Borrower disputes any item thereof
(but any such notice by the Borrower shall be deemed an objection only to those
items specifically set forth in such notice). Failure by the Swingline Lender
to render any such account shall in no way affect its or any other Lender's
rights hereunder or under any of the other Credit Documents.
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SECTION 4.11. FUNDING LOSSES. The Borrower shall
compensate each Lender, upon its written request to the Borrower (which request
shall set forth the basis for requesting such amounts in reasonable detail and
which request shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all of the parties hereto), for all losses,
expenses and liabilities (including, without limitation, any interest paid by
such Lender to lenders of funds borrowed by it to make or carry its LIBOR
Advances hereunder, in either case to the extent not recovered by such Lender
in connection with the re-employment of such funds and including loss of
anticipated profits), which the Lender may sustain: (i) if for any reason
(other than a default by such Lender) a Borrowing of any LIBOR Advance does not
occur on the date specified therefor in a Notice of Revolving Loan Borrowing or
a Notice of Revolving Loan Conversion/Continuation, (ii) if any repayment
(including any voluntary or mandatory prepayment) of any LIBOR Advance occurs
on a date which is not the last day of an Interest Period applicable thereto,
or (iii) if, for any reason, the Borrower defaults in its obligation to repay
any LIBOR Advance when due as required by the terms of this Agreement.
SECTION 4.12. ASSUMPTIONS CONCERNING FUNDING OF LIBOR
ADVANCES. The calculation of all amounts payable to a Lender under this
Agreement with respect to any LIBOR Advance shall be made as though that Lender
had actually funded its relevant LIBOR Advances through the purchase of
deposits in the relevant market bearing interest at the rate applicable to such
LIBOR Advance in an amount equal to the amount of the LIBOR Advance and having
a maturity comparable to the relevant Interest Period and through the transfer
of such LIBOR Advance from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; provided, however that
each Lender may fund each of its LIBOR Advances in any manner it sees fit and
the foregoing assumption shall be used only for calculation of amounts which
may be payable under this Agreement.
SECTION 4.13. APPORTIONMENT OF PAYMENTS. All aggregate
principal and interest payments in respect of Loans and all aggregate payments
in respect of Facility Fees and Commitment Fees received by the Agent shall be
apportioned among all outstanding Revolving Loan Commitments and Loans to which
such payments relate, proportionately to the Lenders' respective Pro Rata
Shares of such Revolving Loan Commitments and outstanding Loans. The Agent
shall promptly distribute to each Lender at its address set forth beside its
name on Annex I attached hereto or such other address as any Lender may request
its share of all such payments received by the Agent.
SECTION 4.14. AGREEMENTS REGARDING INTEREST AND OTHER
CHARGES. Pursuant to O.C.G.A. Section 7-4-2, Borrower, the Agent and the
Lenders hereby agree that the only charges imposed or to be imposed by the
Agent or the Lenders upon Borrower for the use of money in connection with the
Loans is and will be the interest required to be paid under the provisions of
Sections 2.02(b), 3.02(b) and 4.02 hereof as well as the related provisions of
the Notes. In no event shall the amount of interest due and payable under this
Agreement, the Notes or any of the other Credit Documents exceed the maximum
rate of interest allowed by applicable law (including, without limitation,
O.C.G.A. Section 7-4-18) and, in the event any such payment is made by
Borrower or any other Credit Party or received by the Agent or any Lender, such
excess sum
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shall be credited as a payment of principal. It is the express intent hereof
that the Borrower not pay and the Agent and the Lenders not receive, directly
or indirectly or in any manner, interest in excess of that which may be
lawfully paid under applicable law.
SECTION 4.15. BENEFITS TO GUARANTORS. In consideration
for the execution and delivery by the Guarantors of the Guaranty Agreement and
any and all other Credit Documents executed by them, the Borrower agrees to
make the benefit of all Credit Events hereunder available to the Guarantors.
SECTION 4.16. AMENDMENT AND RESTATEMENT; NO NOVATION.
(a) This Agreement constitutes an amendment and restatement of the 1993 Credit
Agreement effective from and after the date hereof. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
are not intended by the parties to be, and shall not constitute, a novation of
any indebtedness or other obligations owing to the Lenders or the Agent under
the 1993 Credit Agreement based on any facts or events occurring or existing
prior to the execution and delivery of this Agreement. On the date hereof, the
credit facilities and the terms and conditions thereof described in the 1993
Credit Agreement shall be amended and replaced by the credit facilities and the
terms and conditions thereof described herein, and all loans and other
obligations of the Borrower outstanding as of such date under the 1993 Credit
Agreement shall be deemed to be loans and obligations outstanding under the
corresponding facilities described herein (such that all Revolving Loans and
all Cash Management Loans outstanding under the 1993 Credit Agreement shall
become Revolving Loans and Swingline Loans under this Agreement, respectively),
without further action by any Person.
(b) Borrower hereby requests that, on the date on
which all of the conditions set forth in Sections 5.01 and 5.02 hereof are
satisfied, make such payments to the other
Lenders so that, after giving effect thereto, the aggregate outstanding
principal balance of each Lender's Revolving Loans (including those of )
equals its Pro Rata Share of the aggregate outstanding principal
balance of all Lenders' Revolving Loans (and such payments shall constitute
Revolving Loans made hereunder by and shall constitute prepayments of the other
Lenders' Base Rate Advances under the 1993 Credit Agreement). Also
notwithstanding anything in this Agreement to the contrary, (i) each Lender
shall hold, immediately after the effectiveness of this Agreement, LIBOR
Advances having the same outstanding principal amounts and Interest Periods as
were outstanding and held by such Lender under the 1993 Credit Agreement
immediately prior to the effectiveness of this Agreement, (ii) thereafter, so
long as such LIBOR Advances remain outstanding, each Base Rate Advance shall be
made in such amounts by the Lenders so that, after giving effect thereto, the
aggregate outstanding principal balance of each Lender's Revolving Loans
(including its share of the aforesaid LIBOR Advances) equals its Pro Rata Share
of the aggregate outstanding principal balance of all Lenders' Revolving Loans
(including all of the aforesaid LIBOR Advances), and (iii) upon the repayment
of each such LIBOR Advance, the Borrower shall request that the Lenders (other
than ) make additional Revolving Loans,
the proceeds of which shall be paid to , so
that after giving effect thereto the aggregate outstanding principal balance of
each Lender's Revolving Loans (including its share of any remaining LIBOR
Advances)
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equals it Pro Rata Share of the aggregate outstanding principal balance of
all Lenders' Revolving Loans (including all remaining LIBOR Advances).
SECTION 4.17. CERTAIN ASSET SALES. Notwithstanding
anything in this Agreement or any of the other Credit Documents to the
contrary, Borrower or its Subsidiaries may sell (including by way of an initial
public offering) all of the stock (or all or substantially all the assets) of
HRI and/or any or all of the BSG Subsidiaries without the prior written consent
of any or all of the Lenders or the Agent and the Agent's Liens under the
Security Documents on such Collateral (and any Collateral of such Subsidiary
the stock of which is so sold) and all of such Subsidiary's obligations under
the Guaranty Agreement and the other Credit Documents shall be released by the
Agent if (i) the entire sale price for such transaction is payable in cash or
other immediately available funds, (ii) the Net Proceeds of such sale price are
applied as required under Section 2.06(b) hereof (and, pending such
application, the Agent's and the Lenders' Liens shall attach thereto pursuant
to the Security Documents and such proceeds shall be Collateral for the
Obligations), (iii) no other Default or Event of Default then exists or will be
caused by such transaction, and (iv) on the date of the closing of such sale
Borrower's chief executive officer or chief financial officer executes and
delivers to the Agent a properly completed certificate in the form of Exhibit H
attached hereto.
ARTICLE V.
CONDITIONS PRECEDENT TO CREDIT EVENTS
The respective obligations of the Agent and the Lenders
to make any Loan to Borrower hereunder are subject to the satisfaction of the
following conditions precedent:
SECTION 5.01. CONDITIONS PRECEDENT TO INITIAL CREDIT
EVENT. At the time of the initial Credit Event under this Agreement, the Agent
and the Initial Lenders shall have received the following (all documents to be
in form and substance satisfactory to the Agent and the Initial Lenders):
(a) this Agreement duly completed and executed;
(b) the duly completed and executed Notes;
(c) the duly executed and completed Security Agreement
of Borrower (together with the insurance certificates and loss
payable endorsements required thereunder);
(d) the duly executed and completed Guaranty
Agreement, Security Agreement, Intercompany Notes, Trademark
Security Agreements, and Copyright Assignments of the initial
Guarantors (together with the insurance certificates and loss
payable endorsements required thereunder);
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(e) the duly executed and completed Pledge Agreements
covering all (or, in the case of any Foreign Subsidiary, 66%
or such lesser percentage as may be owned) of the capital
stock of the Initial Subsidiaries owned by the Credit Parties,
together with any and all stock certificates and duly executed
undated blank stock transfer powers for all of the shares
covered by the Pledge Agreements;
(f) the Warrants for each Lender duly executed and
completed by the Borrower;
(g) satisfactory evidence of the recording of such
Uniform Commercial Code financing statements in the Office of
the Clerk of the Superior Court of Cobb County, Georgia as
well as written reports of examinations of the public records
of Cobb County, Georgia and the Georgia Superior Court Clerks'
Cooperative Authority, together with copies of all recorded
Lien documents shown in such reports;
(h) the favorable opinions of
and counsels for the Borrower and the
Initial Guarantors, in the forms of Exhibit E-1 and Exhibit
E-2 attached hereto, respectively (subject to such changes
therein as may be acceptable to the Agent and the Initial
Lenders);
(i) certificates of each of the Borrower and the
Initial Guarantors in substantially the forms of Exhibit F-1,
and Exhibit F-2, respectively, attached hereto, duly executed
and appropriately completed;
(j) copies of the Certificate or Articles of
Incorporation of each of the Borrower and each of the Initial
Guarantors (certified in each case by the Secretary of State
or other appropriate official of the state of such Credit
Party's incorporation), together with current good standing
certificates or certificates of existence for each such Credit
Party issued by the Secretary of State or other appropriate
official of such Credit Party's jurisdiction of incorporation
and of such other jurisdictions where such Credit Party
presently is qualified to do business as a foreign corporation
and which the Agent may reasonably request;
(k) copies of all documents and instruments, including
all consents, authorizations and filings, required under any
Requirement of Law or by any Contractual Obligation of
Borrower or any Initial Guarantor, in connection with the
execution, delivery, performance, validity and enforceability
of the Credit Documents and the other documents to be executed
and delivered hereunder, and such consents, authorizations,
filings and orders shall be reasonably satisfactory in form
and substance to the Agent and the Initial Lenders and shall
be in full force and effect and all applicable waiting periods
shall have expired;
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(l) all corporate proceedings and all other legal
matters in connection with the authorization, legality,
validity and enforceability of the Credit Documents shall be
reasonably satisfactory in form and substance to Agent and the
Initial Lenders;
(m) payment of the Facility Fee due pursuant to
Section 4.03(a) hereof;
(n) a Financial Condition Certificate duly executed
and completed by Borrower in the form of Exhibit O attached
hereto;
(o) the Post-Closing Requirements Agreement duly
executed and delivered by Borrower and its Domestic
Subsidiaries; and
(p) such other documents, certificates, approvals or
filings as the Agent or any Initial Lender may reasonably
request.
SECTION 5.02. CONDITIONS PRECEDENT TO ALL CREDIT
EVENTS. At the time of (and after giving effect to) the making of any Loan
under this Agreement, the following conditions shall have been satisfied or
shall exist:
(a) there shall then exist no Default or Event of
Default (and the making of such Loan shall not result in a
violation of Section 2.01(e) hereof);
(b) all representations and warranties by Borrower or
the other Credit Parties contained herein or in the other
Credit Documents (other than those representations and
warranties which are, by their terms, expressly limited to the
date made or given) shall be true and correct in all material
respects with the same effect as though such representations
and warranties had been made on and as of the date of such
Loan;
(c) since the date of the most recent financial
statements described in Section 6.02 or received pursuant to
Section 7.01, and except as disclosed in (i) the report on
Form 10-Q as filed by the Borrower with the SEC for its fiscal
quarter ending September 30, 1996, (ii) the Borrower's October
22, 1996 press release regarding its revised third quarter
1996 financial results or (iii) any other written materials
delivered by the Borrower or the Borrower's, the Agent's or
the Lenders' advisers (including without limitation )
to all Lenders on or after August 14, 1996 and prior to the
execution and delivery of this Agreement, there shall have
been no change which has had or could reasonably be expected
to have a Material Adverse Effect;
(d) except as set forth on Schedule 6.03 attached
hereto, there shall be no action or proceeding instituted or
pending before any court or other governmental authority or,
to the knowledge of Borrower, threatened (i) which has had or
reasonably could be expected to have a Material Adverse Effect
or (ii) seeking to prohibit or restrict any Credit Party's
ownership or operation of any material portion of its business
or assets or to compel any Credit Party to dispose of or hold
separate all or any material portion of
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its businesses or assets, which, in any case, has had or
reasonably could be expected to have a Material Adverse
Effect; and
(e) the Loan to be made and the use of proceeds
thereof shall not contravene, violate or conflict with, or
involve any Credit Party, the Agent or any Lender in a
violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental
authority.
Each request for a Loan and the acceptance by Borrower
of the proceeds thereof shall constitute a representation and warranty by
Borrower, as of the date of such Loan, that the conditions specified in
Sections 5.01 (in the case of the initial Credit Event) and 5.02 (in the case
of each Credit Event) have been satisfied.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all of its Subsidiaries)
represents and warrants to the Agent and the Lenders as follows:
SECTION 6.01. ORGANIZATION; SUBSIDIARIES;
AUTHORIZATION; VALID AND BINDING OBLIGATIONS.
(a) Borrower is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware.
Each Subsidiary is duly organized and validly existing in good standing under
the laws of the jurisdiction in which it is incorporated or organized, as the
case may be.
(b) As of the date of this Agreement, there exist no
Subsidiaries other than those identified on Schedule 6.01(b) attached hereto
(and Borrower hereby covenants that no other Subsidiaries will be created or
acquired without (i) giving the Agent and each Lender not less than five (5)
days' prior written notice of the creation of any such Subsidiary or not less
than thirty (30) days' prior written notice of the acquisition of any such
Subsidiary, and (ii) compliance with any requirement under Section 7.10 that
such Subsidiary become an additional Credit Party).
(c) As of the date of this Agreement, and except as
disclosed on Schedule 6.01(c) attached hereto the Borrower has no Material
Subsidiaries.
(d) Each of the Borrower and its Subsidiaries is duly
qualified as a foreign corporation or limited liability company, as the case
may be, and in good standing in each jurisdiction where the ownership of
property or the nature of the business transacted by it makes such
qualification necessary, except where the failure to be so qualified would not
have a Material Adverse Effect, and Borrower has and each Subsidiary has the
corporate or other power to own its respective property and to carry on its
respective business as now being conducted.
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(e) Each of the Borrower and its Subsidiaries has all
requisite corporate or other power and authority to execute and deliver the
Credit Documents to which it is a party and to perform its obligations under
such Credit Documents. The Credit Documents to which Borrower or any
Subsidiary is a party have been duly authorized by all requisite corporate or
other action on the part of such Credit Party and duly executed and delivered
by authorized officers or other legal representatives of such Credit Party.
(f) Each of the Credit Documents to which Borrower or
any Subsidiary is a party constitutes a valid obligation of such Credit Party,
legally binding upon and enforceable against such Credit Party in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally or by general principles of
equity. The Borrower has reserved and shall keep available for issuance upon
the exercise of the Warrants the Warrant Shares deliverable upon exercise of
all Warrants from time to time outstanding. The issuance of the Warrant Shares
has been duly and validly authorized and, when issued will be duly and validity
issued, fully paid and nonassessable and free of preemptive rights.
SECTION 6.02. FINANCIAL STATEMENTS. Borrower has
furnished the Agent and each Initial Lender with copies of (i) the consolidated
balance sheet of the Borrower and its Subsidiaries as at December 31, 1995, and
the related consolidated statements of income and cash flows for the twelve
(12) month period then ended, including in each case the related schedules and
notes, and (ii) the unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as of November 30, 1996, and the related unaudited
consolidated statements of income and cash flows for the year-to-date period
then ended. The foregoing financial statements fairly present the consolidated
financial condition of the Borrower and its Subsidiaries as at the dates
thereof and the results of their financial condition for such periods in
conformity with GAAP (subject, in the case of interim financial statements, to
normal year-end adjustments). Since December 31, 1995, and except as disclosed
in (x) the report on Form 10-Q as filed by the Borrower with the SEC for the
Borrower's fiscal quarter ending September 30, 1996, (y) the Borrower's October
22, 1996 press release regarding its financial results for its third quarter
ending September 30, 1996, or (z) any other written materials delivered by the
Borrower or the Borrower's, the Agent's or the Lenders' advisers (including
without limitation ) to all Lenders on or after August 14, 1996
and prior to the execution and delivery of this Agreement, there has been no
Material Adverse Effect.
SECTION 6.03. ACTIONS PENDING. Except as may be
disclosed on Schedule 6.03 attached hereto, there is no action, suit,
investigation or proceeding pending or, to the knowledge of Borrower,
threatened against Borrower or any of its Subsidiaries, or any properties or
rights of Borrower or any of its Subsidiaries, by or before any court,
arbitrator or administrative or governmental body which has had or could
reasonably be expected to result in any Material Adverse Effect.
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SECTION 6.04. OUTSTANDING INDEBTEDNESS. Neither
Borrower nor any of its Subsidiaries has outstanding any Indebtedness except as
has been disclosed on the financial statements described in Section 6.02 above
or as may be permitted by Section 8.01.
SECTION 6.05. TITLE TO PROPERTIES. Each of the
Borrower and its Subsidiaries has good and marketable title to all of its
respective properties and assets (other than properties and assets disposed of
in the ordinary course of business), subject to no Lien of any kind except
Liens granted under the Security Documents or permitted pursuant to Section
8.02. All leases necessary in any material respect for the conduct of the
respective businesses of Borrower and its Subsidiaries are valid and subsisting
and are in full force and effect, there has not been asserted against Borrower
any claim of default and there exists no default or event or condition which,
with notice or lapse of time or both, would constitute a default under such
leases which claim or default has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 6.06. TAXES. Except as may be disclosed on
Schedule 6.06 attached hereto, Borrower has and each of its Subsidiaries has
filed all federal, state and other income tax returns which, to the knowledge
of the Borrower, are required to be filed, and each has paid all taxes as shown
on such returns and on all assessments received by it to the extent that such
taxes have become due, except such taxes as are not due or which are being
contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP as required by Section 7.06
below.
SECTION 6.07. CONFLICTING AGREEMENTS AND OTHER MATTERS.
Neither the execution nor delivery of this Agreement, nor fulfillment of or
compliance with the terms and provisions of this Agreement, will conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute
a default under, or result in any violation of, or result in the creation of
any Lien (other than Liens granted under the Credit Documents) upon any of the
properties or assets of Borrower or any of its Subsidiaries pursuant to, the
charter or by-laws of Borrower or any of its Subsidiaries, any award of any
arbitrator or any agreement, instrument, order, judgment, decree, statute, law,
rule or regulation to which Borrower or any of its Subsidiaries is subject.
Neither Borrower nor any of its Subsidiaries is a party to, or otherwise
subject to any provision contained in, any instrument evidencing indebtedness
of Borrower or such Subsidiary, any agreement (other than the Credit Documents)
relating thereto or any other contract or agreement (including its Articles or
Certificate of Incorporation or By-Laws) which limits the amount of, or
otherwise imposes restrictions on the incurring of, Indebtedness of Borrower of
the type to be created under this Agreement or evidenced by the Notes.
SECTION 6.08. ERISA. Except as disclosed on Schedule
6.08 attached hereto:
(a) None of the Consolidated Companies nor any of
their respective ERISA Affiliates maintains or contributes to, or has during
the past two years maintained or contributed to, any Plan that is subject to
Title IV of ERISA;
(b) Each Plan maintained by the Consolidated Companies
has at all times been maintained, by its terms and in its operation, in
compliance with all applicable laws, and the
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Consolidated Companies are subject to no tax or penalty with respect to any
Plan of such Consolidated Company or any ERISA Affiliate thereof, including
without limitation, any tax or penalty under Title I or Title IV of ERISA or
under Chapter 43 of the Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404, or 419 of the Code, where the failure to
comply with such laws, and such taxes and penalties, together with all other
liabilities referred to in this Section 6.08 (taken as a whole), has had or
could reasonably be expected to have a Material Adverse Effect;
(c) The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans of
such Consolidated Companies or any of their ERISA Affiliates, including without
limitation, any liabilities arising from Title I or IV of ERISA, other than
obligations to fund benefits under an ongoing Plan and to pay current
contributions, expenses and premiums with respect to such Plans, where such
liabilities, together with all other liabilities referred to in this Section
6.08 (taken as a whole), has had or could reasonably be expected to have a
Material Adverse Effect; and
(d) The Consolidated Companies and, with respect to
any Plan which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (i) required to be
contributed under the terms of each Plan and applicable law, and (ii) required
to be paid as expenses (including PBGC or other premiums) of each Plan, where
the failure to pay such amounts (when taken as a whole, including any penalties
attributable to such amounts) has had or could reasonably be expected to have a
Material Adverse Effect, and no Plan subject to Title IV of ERISA has an
"amount of unfunded benefit liabilities" (as defined in Section 4001(a)(18) of
ERISA), determined as if such Plan terminated on any date on which this
representation and warranty is deemed made, in any amount which, together with
all other liabilities referred to in this Section 6.08 (taken as a whole), has
had or could reasonably be expected to have a Material Adverse Effect if such
amount were then due and payable, and the Consolidated Companies are subject to
no liabilities with respect to post-retirement medical benefits in any amounts
which, together with all other liabilities referred to in this Section 6.08
(taken as a whole), have had or could reasonably be expected to have a Material
Adverse Effect if in such amounts were then due and payable.
SECTION 6.09. GOVERNMENTAL CONSENT. Except for (i) any
recording or filing which may be required by applicable law to perfect or
maintain the perfection of the Agent's Liens in the Collateral and (ii) any
registration or other filings with the SEC which may be required by applicable
law to permit the Borrower to comply with the Lenders' registration rights
under the Warrants, no consent, approval or authorization of, or declaration or
filing with, any governmental authority is required for the valid execution,
delivery and performance by any Credit Party of the Credit Documents executed
by such Person or the consummation of any of the transactions contemplated by
the Credit Documents.
SECTION 6.10. COMPLIANCE WITH LAWS AND REGULATIONS.
Each of the Borrower and its Subsidiaries complies with all federal, state,
local, and other laws, ordinances and other governmental rules or regulations
to which any of them is subject, including without limitation, Environmental
Laws and laws and regulations relating to equal employment opportunity and
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employee safety and Borrower will promptly comply and will cause each of its
Subsidiaries promptly to comply with all such laws and regulations which may be
legally imposed on Borrower or any Subsidiary in the future, except where the
failure to so comply has not had or could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.11. POSSESSION OF LICENSES, FRANCHISES, ETC.
Borrower and its Subsidiaries possess all material licenses, franchises,
certificates, permits and other authorizations from any governmental or
regulatory authorities that are necessary in any material respect for the
ownership, maintenance and operation of their respective material properties
and assets, and neither Borrower nor any Subsidiary is in violation of any
thereof in any material respect.
SECTION 6.12. INTELLECTUAL PROPERTY RIGHTS. Except as
set forth on Schedule 6.12, the Consolidated Companies have obtained and hold
in full force and effect all material patents, trademarks, service marks, trade
names, copyrights, licenses and other such rights which are necessary for the
operation of their respective businesses as presently conducted and, to the
best of Borrower's knowledge, no product, process, method, service or other
item presently sold or employed by any Consolidated Company in connection with
its business infringes any patent, trademark, service mark, trade name,
copyright, license or other such right owned by any other person and there is
not presently pending or, to the knowledge of Borrower, threatened any claim or
litigation against or affecting any Consolidated Company contesting such
Person's right to sell or use any such product, process, method, substance or
other item except where such non-possession, infringement or contest has not
had or could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.13. ENVIRONMENTAL COMPLIANCE. Borrower and
each of its Subsidiaries have obtained all material permits, licenses and other
authorizations which are required under Environmental Laws, and Borrower and
each of its Subsidiaries are in compliance in all material respects with all
terms and conditions of such permits, licenses and authorizations and are also
in compliance in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Laws.
Neither Borrower nor any of its Subsidiaries is aware of, or has received
notice of, any past, present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans which, with respect to
Borrower or any Subsidiary, may interfere with or prevent compliance or
continued compliance in all material respects with Environmental Laws, or may
give rise to any material common law or legal liability, or otherwise form the
basis of any material claim, action, demand, suit, proceeding, hearing, study
or investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling, or the
emission, discharge, release or, threatened release into the environment, of
any pollutant, contaminant, chemical, or industrial, toxic or hazardous
substance or waste. Except as set forth on Schedule 6.03 attached hereto,
there is no civil, criminal or administrative action, suit, demand, claim,
hearing, notice or demand proceeding pending or, to the knowledge of the
Borrower, threatened against Borrower or any Subsidiary relating in any way to
Environmental Laws that has had, and that could reasonably be expected to have,
a Material Adverse Effect.
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SECTION 6.14. SOLVENCY. After giving effect to the
transactions contemplated by the Credit Documents, (i) the assets of each of
Borrower and its Material Subsidiaries, at a fair valuation, will exceed its
debts, (ii) each such Credit Party's capital will not be unreasonably small to
conduct its business, (iii) no such Credit Party will have incurred debts, or
have intended to incur debts, beyond its ability to pay such debts as they
mature, and (iv) the then-current fair salable value of each such Credit
Party's assets will be greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured.
For purposes of this Section, "debt" means any liability on a claim, and
"claim" means (x) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, or (y) the right
to an equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured. For purposes of this Section 6.14, the Borrower may
assume that the Loans will be refinanced on the Credit Expiration Date.
SECTION 6.15. MARGIN REGULATIONS AND INVESTMENT COMPANY
ACT, ETC. No part of the proceeds of any Loan will be used for any purpose
which violates, or which would be inconsistent or not in compliance with, the
provisions of the applicable Margin Regulations. No Credit Party is an
"investment company" or a company "controlled" by an "investment company" (as
each of the quoted terms is defined or used in the Investment Company Act of
1940, as amended). No Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, or any foreign,
federal or local statute or regulation limiting its ability to incur
indebtedness for money borrowed, to guarantee such indebtedness or to pledge
any of its assets to secure such indebtedness, as contemplated by this
Agreement or by any other Credit Document.
SECTION 6.16. LABOR MATTERS. Neither Borrower nor any
Subsidiary of Borrower has experienced any strike, labor dispute, slow down or
work stoppage due to labor disagreements, and, to the best knowledge of
Borrower, there is no strike, dispute, slow down or work stoppage threatened
against Borrower or any Subsidiary. Except as set forth on Schedule 6.03
attached hereto, there are no claims or lawsuits which have been asserted or
instituted against Borrower on the basis that it did not perform in respect of
any undertakings made towards its employees or their representatives and no
basis for such claim or lawsuits exists except for such claims or lawsuits that
have not had, and could not reasonably be expected to have, a Material Adverse
Effect. Borrower has acted in all material respects in accordance with any
agreements entered into with representatives of its employees relating to their
relations with and obligations towards their employees.
SECTION 6.17. BROKERS. There are and will be no claims
against the Agent or any Lender for brokerage commissions, finder's fees or
investment banking fees in connection with the transactions contemplated by
this Agreement.
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SECTION 6.18. DISCLOSURE. Neither this Agreement nor
any other document, certificate or statement furnished to the Agent or any
Lender by or on behalf of Borrower or any other Credit Party in connection
herewith contains, in light of the circumstances under which furnished, any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not materially
misleading. There is no fact peculiar to Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect and which
has not been set forth in this Agreement or in the other documents,
certificates and statements furnished to the Agent or any Lender by or on
behalf of Borrower in connection with the transactions contemplated hereby.
SECTION 6.19. NO BURDENSOME RESTRICTIONS. None of the
Consolidated Companies is a party to or bound by any Contractual Obligation or
Requirement of Law which has resulted in or could reasonably be expected to
result in any Material Adverse Effect.
SECTION 6.20. PAYMENT AND DIVIDEND RESTRICTIONS.
Except as set forth on Schedule 6.20 attached hereto, or as provided in Section
8.05 hereof, none of the Consolidated Companies is a party to or subject to
any agreement or understanding restricting or limiting the payment of dividends
or other distributions by any such Consolidated Company.
SECTION 6.21. INSURANCE. Each of Borrower and its
Subsidiaries maintains insurance with respect to its respective properties and
businesses, with financially sound and reputable insurers, having coverages
against losses or damages of the kinds customarily insured against by reputable
companies engaged in the same or similar businesses, such insurance being in
amounts no less than those amounts which are customary for such companies under
similar circumstances. Each of Borrower and its Subsidiaries has paid all
insurance premiums due and owing with respect to such insurance policies and
coverages and such policies and coverages, are in full force and effect.
SECTION 6.22. REVISIONS OR UPDATES OF SCHEDULES.
Should any of the information or disclosures provided on any of the Schedules
attached hereto become incorrect in any material respect, the Borrower shall
provide promptly to the Agent and the Lenders in writing such revisions to such
Schedule as may be necessary to correct same, provided that no Schedule shall
be deemed to have been amended, modified or superseded by any such correction,
nor shall any breach of warranty or representation resulting from the
inaccuracy or incompleteness of any such Schedule be deemed to have been cured
thereby, unless and until the Required Lenders in their sole and absolute
discretion shall have accepted in writing such revisions to such Schedule.
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ARTICLE VII.
AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, and unless
the Required Lenders expressly consent in writing to the contrary, Borrower
hereby expressly covenants and agrees (for itself and its Subsidiaries) that:
SECTION 7.01. FINANCIAL STATEMENTS AND NOTICES.
Borrower shall promptly deliver to the Agent and each Lender:
(a) within thirty (30) days after the end of each
month, commencing with the month of December, 1996 (but the
financial statements for the month of December, 1996, shall
not be due until February 14, 1997), consolidated and
consolidating statements of income and statements of cash
flows of Borrower and its Subsidiaries for such period and for
the period from the beginning of such fiscal year to the end
of such period, and consolidated and consolidating balance
sheets of Borrower and its Subsidiaries as of the end of such
period, setting forth in the case of each monthly statement in
comparative form figures for the corresponding period in the
preceding fiscal year, all in reasonable detail, prepared in
accordance with GAAP (subject to changes resulting from normal
year-end adjustments) but not audited and accompanied by
accounts receivable aging schedules for Borrower and each
Subsidiary in form and substance satisfactory to the Required
Lenders which schedules shall segregate such information for
Borrower and each Subsidiary and shall show the aggregate
dollar value of the accounts receivable for each such Person
and the age of individual items thereof as of the last day of
the relevant fiscal month;
(b) within forty-five (45) days after the end of each
fiscal quarter of Borrower, consolidated and consolidating
statements of income and statements of cash flows of Borrower
and its Subsidiaries for such period and for the period from
the beginning of such fiscal year to the end of such period,
and consolidated and consolidating balance sheets of Borrower
and its Subsidiaries as at the end of such period, setting
forth in the case of each quarterly statement in comparative
form figures for the corresponding period in the preceding
fiscal year, all in reasonable detail, prepared in accordance
with GAAP (subject to changes resulting from normal year-end
adjustments), but not audited, and accompanied by (i)
schedules (in form and substance reasonably satisfactory to
the Required Lenders) of the Capitalized Lease Obligations,
the Intercompany Loans and all other Indebtedness for borrowed
money of each of the Borrower and its Subsidiaries outstanding
as of the end of such quarter, (ii) a schedule (in form and
substance reasonably satisfactory to the Required Lenders) of
all equipment or other fixed assets purchased as well as all
other capital expenditures made during such quarter by the
Borrower and any of its Subsidiaries, and (iii) a duly
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completed and executed Compliance Certificate dated as of the
date of the delivery of such financial statements;
(c) within ninety (90) days after the end of each
fiscal year of Borrower, consolidated and consolidating
statements of income and statements of cash flows of Borrower
and its Subsidiaries for such year, and consolidated and
consolidating balance sheets of Borrower and its Subsidiaries
as at the end of such year, setting forth in each case in
comparative form corresponding figures from the preceding
annual audit, all in reasonable detail, prepared in accordance
with GAAP and reasonably satisfactory in scope to the Required
Lenders and audited in accordance with generally accepted
auditing standards and certified to Borrower by independent
public accountants of recognized standing selected by Borrower
and reasonably acceptable to the Required Lenders whose
certificate shall be unqualified, which financial statements
shall be accompanied by (i) a schedule (in form and substance
reasonably satisfactory to the Required Lenders) of the
Capitalized Lease Obligations, the Intercompany Loans and all
other Indebtedness for borrowed money of each of the Borrower
and its Subsidiaries outstanding as of the last day of such
fiscal year, and (ii) a duly completed and executed Compliance
Certificate dated as of the date of the delivery of such
financial statements;
(d) promptly upon receipt thereof, a copy of each
other report submitted to the Borrower or any Subsidiary by
its independent public accountants in connection with any
annual, interim or special audit made by them of the books of
the Borrower or any such Subsidiary (including, without
limitation any management report prepared in connection with
such accountants' annual audit of the Borrower and its
Subsidiaries);
(e) within twenty (20) days after delivery of each of
the quarterly and annual financial statements described in
paragraphs (b) and (c) above, Borrower also shall deliver to
each of the Lender and the Agent a management report
describing the operations and financial condition of the
Borrower and its Subsidiaries as of and for the quarter or
year then ended, which report shall include comparisons
between the current period and the comparable period of the
preceding fiscal year;
(f) not less than thirty (30) days after the beginning
of each fiscal year of Borrower, Borrower also shall provide
each of the Lenders and the Agent with a copy of the
Borrower's business plan for that fiscal year which shall
include month-by-month projections for each of the Borrower
and its Subsidiaries separately and for the Borrower on a
consolidated basis;
(g) prior to the closing of any Acquisition which
requires the Required Lenders' consent under Section 8.03 or
8.06 hereof or for which the proceeds of any Loan will be used
to pay all or any part of the purchase price thereof,
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Borrower will provide each of the Lenders and the Agent with a
copy of the term sheet, letter of intent and executive summary
of Borrower's "due diligence" findings for such Acquisition,
and to the extent that other relevant information regarding
any such Acquisition is prepared and distributed by Borrower
to its Board of Directors or any committee thereof, a copy of
such other information will be sent by Borrower to the Agent
and the Lenders at the time it is so made available to
Borrower's Board of Directors or any committee thereof;
(h) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and
reports as it shall send to its public stockholders, if any,
and copies of all registration statements and all reports
which it files with the SEC (or any governmental body or
agency succeeding to the functions of the SEC);
(i) promptly upon obtaining knowledge of any Default
or Event of Default, an Officer's Certificate specifying the
nature and period of existence thereof and what action
Borrower proposes to take with respect thereto;
(j) immediately upon becoming aware that the holder of
any evidence of indebtedness or any security of Borrower or
any Subsidiary has given notice or taken any other action with
respect to a claimed default or event of default with respect
to such indebtedness or security or event which, with the
giving of notice or passage of time, or both, would constitute
a default with respect to such indebtedness or security, an
Officer's Certificate specifying the notice given or action
taken by such holder and the nature of the claimed default or
event and what action Borrower or the Subsidiary is taking or
proposes to take with respect thereto;
(k) promptly after learning thereof, any (i) notice
that Borrower or any Subsidiary is not in compliance in all
material respects with all terms and conditions of any permit,
license or authorization which is required under Environmental
Laws, or that Borrower or any Subsidiary is not in compliance
in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained
in any applicable Environmental Laws; (ii) notice of any past,
present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans which, with
respect to Borrower or any Subsidiary, may materially
interfere with or prevent compliance in all material respects
or continued compliance in all material respects with any
applicable Environmental Laws; and (iii) notice or claim of
any civil, criminal or administrative action, suit, demand,
claim, hearing, notice or demand letter, notice of violation,
investigation, or proceeding pending or threatened against
Borrower or any Subsidiary relating in any way to any
applicable Environmental Laws;
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(l) promptly after (i) the occurrence thereof, notice
of the institution by any Person of any action, suit or
proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any
governmental or administrative body, agency, or official,
against Borrower, any Subsidiary, or any material property of
any of them, in which the amount in controversy is stated to
be more than $1,000,000 individually or in the aggregate or,
where no amount in controversy is stated, which might, if
adversely determined, have a Material Adverse Effect or (ii)
the receipt of actual knowledge thereof, notice of the threat
of any such action, suit, proceeding, investigation or
arbitration, each such notice under this subsection to
specify, if known, the amount of damages being claimed or
other relief being sought, the nature of the claim, the Person
instituting the action, suit, proceeding, investigation or
arbitration, and any other significant features of the claim;
(m)(i) promptly after the occurrence thereof with
respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof, or any trust established thereunder, notice
of (x) a "reportable event" described in Section 4043 of ERISA
and the regulations issued from time to time thereunder (other
than a "reportable event" not subject to the provisions for
30-day notice to the PBGC under such regulations), or (y) any
other event which could subject any Consolidated Company to
any tax, penalty or liability under Title I or Title IV of
ERISA or Chapter 43 of the Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or
419 of the Code, where any such taxes, penalties or
liabilities exceed or could exceed $250,000 in the aggregate;
(ii) promptly after such notice must be provided to
the PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4),
303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under
Section 401(a)(29) or 412 of the Code with respect to any Plan
of any Consolidated Company or any ERISA Affiliate thereof;
(iii) promptly after receipt, any notice received by
any Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the PBGC or any other governmental
authority to terminate a Plan of such Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA, to
impose any liability on such Company or ERISA Affiliate under
Title IV of ERISA or Chapter 43 of the Code;
(iv) promptly upon the filing thereof with the
Internal Revenue Service ("IRS") or the United States
Department of Labor ("DOL"), a copy of IRS Form 5500 or annual
report for each Plan of any Consolidated Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA; and
(v) upon the request of the Agent, (x) true and
complete copies of any and all documents, government reports
and IRS determination or opinion letters
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or rulings for any Plan of any Consolidated Company from IRS,
PBGC or DOL, (y) any reports filed with the IRS, PBGC or DOL
with respect to a Plan of the Consolidated Companies or any
ERISA Affiliate thereof, or (z) a current statement of
withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(n) in the event David E. McDowell no longer serves as
chief executive officer or chairman of the Board of Directors
of Borrower, the Borrower shall give the Agent and each Lender
at least seven (7) Business Days prior written notice of the
appointment of his permanent successor, describing such
successor's qualifications for the position in sufficient
detail to enable the Required Lenders to determine whether the
successor is qualified or otherwise reasonably acceptable to
them in accordance with Section 9.01(xiv) hereof;
(o) promptly upon the existence or occurrence thereof,
notice of the existence or occurrence of (i) any Contractual
Obligation or Requirement of Laws described in Section 6.19,
(ii) any failure of any Consolidated Company to hold in full
force and effect those material trademarks, service marks,
patents, trade names, copyrights, licenses and similar rights
necessary for the normal conduct of its business which failure
has had or could reasonably be expected to have a Material
Adverse Effect, or (iii) any strike, labor dispute, slow down,
or work stoppage as described in Section 6.16 hereof which has
had or could reasonably be expected to have a Material Adverse
Effect;
(p) within thirty (30) days after the formation or
acquisition of any Subsidiary not already listed on Schedule
6.01(c), or any other event resulting in the creation of any
such new Subsidiary, notice of the formation or acquisition of
such Subsidiary or such occurrence, including a description of
the assets of such entity, the activities in which it will be
engaged, and such other information as the Agent may request
with respect thereto;
(q) not less than thirty (30) days prior written
notice of any proposed Material Subsidiary Asset Sale,
together with a written accounting on the date of the closing
of each Material Subsidiary Asset Sale of the Net Proceeds
thereof;
(r) within ten (10) Business Days after the end of
each fiscal quarter of Borrower, a written accounting of any
and all Other Asset Sales made during such quarter;
(s) promptly upon the occurrence thereof, notice of
the transfer of any assets from any Credit Party to any other
Consolidated Company that is not a Credit Party (in any
transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of
business (other than the Intercompany Loans), where the Asset
Value of such Assets is greater than $50,000;
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(t) on the last Business Day of each calendar week,
commencing with the calendar week in which the date of this
Agreement occurs, cash flow projections for the following
two-week period and a written comparison of each prior
period's projections to actual results in the form previously
submitted by Borrower to the Lenders; provided, however, that
as soon as available and in any event commencing on the
calendar week beginning March 31, 1997 such cash flow
projections shall be given for the following thirteen-week
period;
(u) within thirty (30) days after the end of each
month, commencing with the month of February, 1997, a full
reconcilement of cash spent by Borrower and its Subsidiaries,
during such period and for the period from the beginning of
such fiscal year to the end of such month, with respect to
reserves relating to prior restructuring charges (including
charges relating to Capitalized Lease Obligations and other
written-off equipment), which reconcilement shall be in such
detail as is reasonably satisfactory to the Lenders, and in
the event Borrower fails to deliver such reconcilement for any
month, the Lenders may cause their own financial analyst
( or such other financial analyst as may
be selected by the Lenders for such purpose) to prepare the
same at the Borrower's expense; and
(v) with reasonable promptness, such other information
relating to the operations, management, business and financial
condition of Borrower or its Subsidiaries or any Plan, as the
Agent or any Lender may reasonably request in writing from
time to time.
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SECTION 7.02. INSPECTION OF PROPERTY.
(a) Borrower will permit any Person designated by the
Agent or any Lender in writing to visit and inspect any of the properties of
Borrower and its Material Subsidiaries, to examine the corporate books and
records of Borrower and its Material Subsidiaries and such other documents as
the Agent or any Lender may reasonably request and make copies thereof or
extracts therefrom, and to discuss the affairs, finances and accounts of any of
such corporations with the officers of Borrower and Borrower's Material
Subsidiaries and with Borrower's independent public accountants, all at such
reasonable times and as often as the Agent or such Lender may reasonably
request; provided, however, that if no Default or Event of Default has occurred
and is then continuing, the Agent or such Lender (as the case may be) shall be
required to provide Borrower's chief financial officer (with a copy to
Borrower's general counsel) with not less than five (5) days' prior written
notice of its intent to make or require such a visit, inspection, examination
or discussion.
(b) Borrower also shall provide the Lenders and the
Agent with reasonable access to Borrower's investment bankers for updates
(which may be provided by telephonic conference calls) at reasonable intervals
on the status of any proposed Material Subsidiary Asset Sales.
SECTION 7.03. BOOKS AND RECORDS. Borrower shall, and
shall cause each Material Subsidiary to, keep its books, records and accounts
in accordance with GAAP and practices applied on a basis consistent with
preceding years. Without limiting the generality of the immediately preceding
sentence, Borrower shall, and shall cause each Subsidiary to, keep complete and
accurate books and records for the Intercompany Loans. On the date of this
Agreement, Borrower shall cause all Intercompany Loans which may be then
outstanding to be evidenced by promissory notes from the borrowers thereof to
the lender or lenders thereof in the form and substance satisfactory to the
Required Lenders, and Borrower shall cause all such promissory notes to be
delivered to the Agent on or before the date hereof as collateral security for
the Obligations pursuant to the Security Agreements.
SECTION 7.04. MAINTENANCE OF INSURANCE. Borrower shall
maintain and cause each Subsidiary to maintain, with financially sound and
responsible insurers reasonably acceptable to the Required Lenders, insurance
with respect to its properties and business against such casualties and
contingencies (including worker's compensation and public liability, larceny,
embezzlement or other criminal misappropriation) and in such amounts as is
customary in the case of similarly situated corporations engaged in the same or
similar businesses. From time to time, upon written request by the Agent at
reasonable intervals, Borrower will deliver an Officer's Certificate specifying
the details of such insurance in effect.
SECTION 7.05. MAINTENANCE OF CORPORATE EXISTENCE,
PROPERTIES, FRANCHISES, ETC. Except to the extent otherwise permitted hereby,
Borrower and each Subsidiary will do or cause or cause to be done all things
reasonably necessary to preserve, renew and keep in full force and effect the
corporate existence of Borrower and its Subsidiaries and the patents,
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trademarks, service marks, trade names, service names, copyrights, licenses,
permits, franchises and other rights, including distributorship and franchise
agreements, that continue to be useful in some material respect to the business
of Borrower or such Subsidiary, and at all times maintain, preserve and protect
all patents, trademarks, service marks, trade names, service names, copyrights,
licenses, permits, franchises and other rights, including distributorship and
franchise agreements, that continue to be useful in some material respect to
the business of Borrower or such Subsidiary, and preserve all the remainder of
its property useful in the conduct of its business and keep the same in good
repair, working order and condition (ordinary wear and tear excepted), and from
time to time, make, or cause to be made, all needful and proper repairs,
renewals, replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
SECTION 7.06. PAYMENT OF TAXES AND CLAIMS. Borrower
and each Subsidiary will pay and discharge or cause to be paid and discharged
all taxes, assessments and governmental charges or levies imposed upon it or
upon its respective income and profits or upon any of its property, real,
personal or mixed or upon any part thereof, before the same shall become in
default as well as all lawful claims for labor, materials and supplies or
otherwise, which, if unpaid, might become a Lien or charge upon such properties
or any part thereof, provided that Borrower and its Subsidiaries shall not be
required to pay and discharge or cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity thereof shall be
timely contested in good faith by appropriate proceedings and it shall have set
aside on its books adequate reserves with respect to any such tax, assessment,
charge, levy or claim, so contested; and provided, further, that payment with
respect to any such tax, assessment, charge, levy or claim shall be made before
any property of Borrower or any Subsidiary shall be seized or sold in
satisfaction thereof.
SECTION 7.07. TYPE OF BUSINESS. Borrower will remain,
and shall cause each of its Subsidiaries to remain, substantially in the
business of providing business management services to physicians, hospitals and
other healthcare providers or organizations or in such other types of business
which are reasonably related or incidental thereto.
SECTION 7.08. COMPLIANCE WITH LAWS, ETC. Borrower
shall comply, and cause each of its Subsidiaries to comply, in all material
respects, with all Requirements of Law and Contractual Obligations applicable
to or binding on any of them, except where the failure to so comply would not
have a Material Adverse Effect.
SECTION 7.09. FINANCIAL COVENANTS. Borrower shall
comply with the following financial covenants:
(a) Minimum Consolidated EBITDA. Borrower's
Consolidated EBITDA for each period shown below shall be not
less than the amount shown below for such period under the
heading "Covenant Amount"; provided, however, that in the
event that a Material Subsidiary Asset Sale of HRI and/or all
of the BSG Subsidiaries occurs during or prior to any period
shown below, the amount of the Minimum Consolidated EBITDA
required hereunder for such period shall be reduced by the
amount shown below for such
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period under the heading "HRI" in the case of a Material
Subsidiary Asset Sale of HRI and/or "BSG" in the case of a
Material Subsidiary Asset Sale of all of the BSG Subsidiaries:
----------------------------------------------------------------------------
Covenant
Period Amount HRI BSG
----------------------------------------------------------------------------
Two (2) fiscal quarters $ 30,000,000 $ 5,365,000 $ 6,242,000
ending June 30, 1997
----------------------------------------------------------------------------
Three (3) fiscal quarters $ 55,500,000 $ 8,813,000 $10,657,000
ending September 30, 1997
----------------------------------------------------------------------------
Four (4) fiscal quarters $ 87,000,000 $12,955,000 $16,804,000
ending December 31, 1997
----------------------------------------------------------------------------
Four (4) fiscal quarters $102,500,000 $16,401,000 $23,335,000
ending March 31, 1998
----------------------------------------------------------------------------
(b) Minimum Consolidated Net Worth. Borrower's
Consolidated Net Worth as of the end of each fiscal quarter
ending on or after June 30, 1997 shall not be less than the
sum of (i) its Consolidated Net Worth as of the end of its
fiscal year ending December 31, 1996 less (ii) $12,000,000 plus
(iii) 100% of its cumulative positive Consolidated Net Income
after taxes for each fiscal quarter ending on or after June 30,
1997, less (iv) any amortization of any original issue discount
arising as a result of the Warrants or any shares of Borrower's
stock issued thereunder.
(c) Maximum Funded Debt Ratio. Borrower's Funded
Debt Ratio for each period shown below shall not exceed the
ratio shown below for such period:
Fiscal quarter ending June 30, 1997 - 5.0:1.0
Fiscal quarter ending September 30, 1997 - 3.4:1.0
Fiscal quarter ending December 31, 1997 - 2.8:1.0
Fiscal quarter ending March 31, 1998 - 2.2:1.0
(d) Minimum Fixed Charge Coverage Ratio. Borrower's
Fixed Charge Coverage Ratio for each period shown below shall
be not less than the ratio shown below for such period:
Fiscal quarter ending June 30, 1997 - 0.85:1.0
Fiscal quarter ending September 30, 1997 - 1.05:1.0
Fiscal quarter ending December 31, 1997 - 1.20:1.0
Fiscal quarter ending March 31, 1998 - 1.45:1.0
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(e) Maximum Capital Expenditures. Borrower's Capital
Expenditures for each fiscal quarter shown below shall not
exceed the amount shown below for such period (but any unused
capacity in one quarter in any one fiscal year may be carried
forward to future quarters in such fiscal year):
Fiscal quarter ending March 31, 1997 - $12,000,000
Fiscal quarter ending June 30, 1997 - $12,000,000
Fiscal quarter ending September 30, 1997 - $ 8,000,000
Fiscal quarter ending December 31, 1997 - $ 8,000,000
Fiscal quarter ending March 31, 1998 - $11,000,000
SECTION 7.10. ADDITIONAL CREDIT PARTIES. Promptly
after (a) any Person not listed on Schedule 6.01(b) becomes a Subsidiary after
the date hereof, or (b) the domestication of any Foreign Subsidiary as a
Domestic Subsidiary, Borrower shall execute and deliver, or cause to be
executed and delivered, (i) a supplement to the appropriate Pledge Agreement
from the direct parent company of such Subsidiary in substantially the same
form of Schedule 2 to such Pledge Agreement with respect to all capital stock
of such Subsidiary (but such pledge shall be limited to sixty-six percent (66%)
of such stock (or such lesser percentage as may be owned) if such Subsidiary is
a non-domesticated Foreign Subsidiary), (ii) a supplement to the Guaranty
Agreement from such Subsidiary (but not if it is a non-domesticated Foreign
Subsidiary) in substantially the form as Schedule 1 to the Guaranty Agreement,
(iii) if required under Section 4.05 hereof, a supplement to the appropriate
Security Agreement from such Subsidiary (but not if it is a non-domesticated
Foreign Subsidiary) in substantially the form of Schedule 2 to such Security
Agreement attached to this Agreement and (iv) if required under Section 4.05
hereof, Real Estate Collateral Documents evidencing the pledge by such
Subsidiary of all of its owned real property, together with the related
documents of the kind described in Sections 5.01(e), (g), (h), (j), (k), (l),
and (p) of this Agreement, all in form and substance reasonably satisfactory to
the Required Lenders.
SECTION 7.11. WARRANTS. On the date hereof, the
Borrower shall issue warrants (collectively, the "Warrants") for an aggregate
of two percent (2.0%) of the outstanding shares of its common stock to the
Lenders (with each Lender to receive its Pro Rata Share of such Warrants),
which Warrants shall vest as follows for all Lenders (with each Lender to
receive its Pro Rata Share of such vested Warrants): (i) Warrants for one
percent (1.0%) of the total outstanding shares of Borrower's common stock shall
vest on January 1, 1998 if on such date the Revolving Loan Commitments are
still in effect or any Obligations for the payment of money (other than (x)
indemnity obligations which are not yet due and payable or (y) Cash Management
Services Obligations) are still outstanding, and (ii) Warrants for an
additional one percent (1.0%) of the total outstanding shares of Borrower's
common stock shall vest on April 1, 1998 if on such date the Revolving Loan
Commitments are still in effect or any Obligations for the payment of money
(other than (x) indemnity obligations which are not yet due and payable or (y)
Cash Management Services Obligations) are still outstanding. All Warrants
shall be in the form of Exhibit J attached hereto. The Warrants shall be duly
executed and registered in such name or names and in such denominations as each
Lender shall have notified the Borrower and shall be deemed earned in
accordance with the terms and conditions of the Warrants.
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(b) The Borrower shall keep available for issuance
upon exercise of the Warrants the Warrant Shares deliverable upon exercise of
all Warrants from time to time outstanding. The Borrower will comply in all
respects with its obligations under the Warrants and shall take all steps as
shall be necessary to insure that the Lenders and any subsequent holders
thereof receive all of the benefits which they are intended to receive
thereunder.
SECTION 7.12. CHIEF FINANCIAL OFFICER; ADDITIONAL
FINANCIAL ADVISER.
(a) By March 31, 1997, Borrower shall hire a chief
financial officer on a permanent basis.
(b) If by June 30, 1997, the aggregate amount of
Revolving Loan Commitments has not been reduced to $200,000,000 or less,
Borrower shall, upon the written request of the Agent acting at the direction
of the Required Lenders and provided that Borrower has not already
independently done so, retain within fifteen (15) days after receipt of such
request an additional financial adviser of recognized national standing
selected by Borrower who will render customary financial advisory services to
Borrower, including without limitation the reassessment of the pricing and
feasibility of Borrower's planned Asset Sales.
ARTICLE VIII.
NEGATIVE COVENANTS
For so long as this Agreement is in effect, and unless
the Required Lenders expressly consent in writing to the contrary, Borrower
hereby expressly covenants and agrees (for itself and its Subsidiaries) as
follows:
SECTION 8.01. INDEBTEDNESS. Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or suffer to exist any
Indebtedness, except
(a) Indebtedness evidenced by or arising under this
Agreement or any of the other Credit Documents;
(b) Unsecured current liabilities (not resulting from
any borrowing) incurred in the ordinary course of business for
current purposes, not represented by a promissory note or
other evidence of indebtedness;
(c) Indebtedness described in Schedule 8.01 attached
hereto and Guaranties permitted under Section 8.11 hereof;
(d) Capitalized Lease Obligations;
(e) Purchase Money Indebtedness (other than
Capitalized Lease Obligations) which at no time exceeds in
aggregate outstanding principal amount for all such
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Indebtedness combined a sum equal to the greater of (i)
$10,000,000 or (ii) ten percent (10%) of Borrower's
Consolidated Net Worth as of the end of its most
recently-completed monthly accounting period for which
financial statements have been delivered to Borrower pursuant
to Section 7.01 hereof;
(f) Indebtedness of the Borrower or any Subsidiary as
a counterparty on Interest Rate Contracts;
(g) Indebtedness of the Borrower or any Subsidiary as
an account party for any letter of credit issued by any
financial institution if such letter of credit is issued
solely as security for performance or payment by the Borrower
or such Subsidiary under any contract which is not otherwise
prohibited by this Agreement and which has been entered into
in the ordinary course of business of the Borrower or such
Subsidiary;
(h) Any Subordinated Debt incurred by the Borrower or
any Subsidiary in amounts and on other terms and conditions
which are satisfactory in all respects to the Required
Lenders;
(i) Intercompany Loans to the extent permitted under
Section 8.06 hereof; and
(j) Renewals or extensions of any Indebtedness
described in paragraphs (c), (d), (e), (f), (g), (h) or (i)
above provided that the principal amount thereof is not
increased beyond any applicable limit set forth above.
SECTION 8.02. LIENS. Borrower will not, and will not
permit any Subsidiary to, create, assume or suffer to exist any Lien upon any
of its property or assets, whether now owned or hereafter acquired, except
(a) Liens for taxes (including ad valorem taxes),
assessments or other governmental charges or levies not yet
due or which are being actively contested in good faith by
appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of Borrower or its
Subsidiaries, as the case may be, in accordance with GAAP;
(b) Statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens
imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith
by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of Borrower or its
Subsidiaries, as the case may be, in accordance with GAAP;
(c) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security
benefits or obligations or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and
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return-of-money bonds and other similar obligations, provided
that such Liens were not incurred in connection with the
borrowing of money or the obtaining of advances;
(d) Purchase Money Liens securing Purchase Money
Indebtedness to the extent permitted under Section 8.01 above;
(e) Zoning ordinances, easements, licenses,
restrictions on the use of real property and minor
irregularities in title thereto which do not materially impair
the use of such property in the operation of the business of
Borrower or any Subsidiary or the value of such property;
(f) Inchoate liens arising under ERISA to secure
current service pension liabilities as they are incurred under
the provisions of Plans from time to time in effect;
(g) Rights reserved to or vested in any municipality
or governmental, statutory or public authority to control or
regulate any property of Borrower or any Subsidiary, or to use
such property in a manner which does not materially impair the
use of such property for the purposes for which it is held by
Borrower or any Subsidiary; and
(h) Liens created under the Security Documents or
identified in Schedule 8.02 attached hereto and made a part
hereof by reference.
SECTION 8.03. MERGER AND SALE OF ASSETS. Borrower will
not, and will not permit any Subsidiary to, merge, consolidate or exchange
shares with any other corporation, or sell, lease or transfer or otherwise
dispose of all or substantially all of its assets (or any of its business
divisions) to any Person, other than sales, leases, transfers or other
dispositions of inventory or obsolete or unnecessary equipment in the ordinary
course of business, except
(a) any Subsidiary may merge or consolidate with
Borrower (provided that Borrower shall be the surviving
corporation therefrom) or with any one or more other
wholly-owned Subsidiaries;
(b) any Subsidiary may sell, lease, transfer or
otherwise dispose of all or any substantial part of its assets
to Borrower or another wholly-owned Subsidiary;
(c) the Other Asset Sales described on Schedule 8.03
attached hereto provided that the Net Proceeds thereof are
applied in accordance with Section 2.06 hereof; and
(d) all of the stock (or all or substantially of the
assets) of HRI and/or any or all of the BSG Subsidiaries may
be sold if and to the extent permitted by Section 4.17 hereof.
SECTION 8.04. ERISA MATTERS. Borrower shall not, nor
permit any Subsidiary to, take or fail to take any action with respect to any
Plan of any Consolidated Company or, with respect to its ERISA Affiliates, any
Plan which is subject to Title IV of ERISA or to continuation
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health care requirements for group health plans under the Code, including
without limitation (i) establishing any such Plan, (ii) amending any such Plan
(except where required to comply with applicable law), (iii) terminating or
withdrawing from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, without first
obtaining the written approval of the Required Lenders, where such actions or
failures could result in a Material Adverse Effect.
SECTION 8.05. DIVIDENDS, ETC. Borrower shall not
declare or pay any cash dividend on its capital stock or make any cash payment
to purchase, redeem, retire, or acquire any of its Subordinated Debt or capital
stock or any option, warrant or other right to acquire such Subordinated Debt
or capital stock.
SECTION 8.06. INVESTMENTS, ACQUISITIONS, ETC. Borrower
shall not, and shall not permit any Subsidiary to, make or have outstanding any
loan or advance to, or own, purchase or acquire any stock, obligations (other
than accounts receivable generated in the ordinary course of business) or
securities of, or any interest in, or make any capital contribution to, or
acquire all or substantially all of the assets of or any business division of,
any other Person, except that the Borrower and any Subsidiary may: (i) acquire
and own stock, obligations or securities received in settlement of debt created
in the ordinary course of business which is owing to the Borrower or such
Subsidiary; (ii) own, purchase or acquire (A) commercial paper, banker's
acceptances or certificates of deposit issued by any Lender (or its parent
holding company) or by any other United States commercial bank or enter into
repurchase agreements with such Lenders or banks with respect to obligations
described in this clause (ii), (B) obligations of reputable issuers located in
the United States which obligations have a short-term rating of A-1 or better
by Standard & Poor's Corporation or P-1 by Moody's Investors Service, Inc., (C)
obligations of the United States government or any agency thereof, and (D)
obligations guaranteed by the United States government or any agency thereof,
in each case such obligations described in this clause (ii) to be due within
one year and one day from the date of acquisition; (iii) endorse negotiable
instruments for collection or deposit in the ordinary course of business; (iv)
own stock of or other equity interests in the Initial Subsidiaries and any
other Subsidiary created by Borrower after the date hereof other than in
connection with an Acquisition (provided that Borrower complies with all
applicable requirements of Sections 6.01 and 7.10 hereof); (v) subject to the
provisions of Section 2.01(b) hereof, make Intercompany Loans to or hold any
obligations or securities of any of the Borrower's Subsidiaries so long as such
Intercompany Loans are evidenced by an Intercompany Note executed by such
Subsidiary and such Intercompany Note is delivered to the Agent as collateral
security for the Obligations pursuant to the terms of the Security Agreements,
(vi) make advances in the ordinary course of such Credit Party's business to
its officers and employees to cover travel, entertainment or moving expenses to
be incurred by them in connection with such Credit Party's business, and (vii)
in the case of MPSC only, Customer Advances so long as the aggregate
outstanding principal balances of all Customer Advances at any one time does
not exceed $1,000,000.
SECTION 8.07. SALE AND LEASE-BACK TRANSACTIONS.
Borrower will not, and will not permit any Subsidiary to, enter into or permit
to remain in effect any arrangement with any
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lender or investor or to which such lender or investor is a party providing for
the leasing by Borrower or any Subsidiary of real or personal property which
has been or is to be sold or transferred by Borrower or any Subsidiary to such
lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property or rental
obligations of Borrower or any Subsidiary.
SECTION 8.08. TRANSACTIONS WITH AFFILIATES. Borrower
will not, and will not permit any Subsidiary to, directly or indirectly
purchase, acquire or lease any property from, or sell, transfer or lease any
property to, or otherwise deal with, in the ordinary course of business or
otherwise, any Affiliate (other than another Consolidated Company), except upon
terms not less favorable to Borrower or the Subsidiary than if the relationship
of Affiliate did not exist.
SECTION 8.09. FISCAL YEAR CHANGE. Borrower shall not
change its fiscal year.
SECTION 8.10. USE OF PROCEEDS. Borrower shall not use
the proceeds of any of the Revolving Loans or the Swingline Loans for any
purpose other than as and to the extent permitted by Sections 2.01(b) or
Section 3.01(b) hereof, respectively.
SECTION 8.11. GUARANTIES. Borrower and its
Subsidiaries shall not become or remain liable with respect to any Guaranty,
except for (i) endorsements of instruments or items of payment for deposit or
collection in the ordinary course of business, (ii) any Guaranty Agreements
executed pursuant to this Agreement, (iii) any other Guaranties described on
Schedule 8.11 attached hereto, (iv) any Guaranties by any Consolidated Company
of any Indebtedness of another Consolidated Company if such Indebtedness is
permitted under Section 8.01 hereof, and (v) any Guaranties by any Consolidated
Company of any Contractual Obligations of another Consolidated Company incurred
in the ordinary course of the latter's business (other than Contractual
Obligations which constitute Indebtedness which is not permitted to be incurred
by the latter Consolidated Company under Section 8.01 hereof); provided,
however, that no Subsidiary of Borrower shall enter into after the date of this
Agreement any Guaranty of any Capitalized Lease Obligations of Borrower or
another of its Subsidiaries to any Lender or any Affiliate of a Lender without
the prior written consent of all Lenders.
SECTION 8.12. LIMITATION ON PAYMENT AND DIVIDEND
RESTRICTIONS. Borrower shall not create or otherwise cause or suffer to exist
or to become effective any consensual encumbrance or restriction on the ability
of any Consolidated Company to (i) pay dividends or make any other
distributions on such Consolidated Company's stock, (ii) pay any Indebtedness
owed to the Borrower or any other Consolidated Company, or (iii) transfer any
of its property or assets to the Borrower or any other Consolidated Company,
except any such consensual encumbrance or restriction existing under the Credit
Documents, and except with respect to clause (ii) above, restrictions contained
in agreements relating to Purchase Money Indebtedness and Capitalized Lease
Obligations that relate solely to the assets so financed and typical
non-assignment provisions contained in contracts, leases and licenses entered
into by Borrower or any other Consolidated Company in the ordinary course of
its business.
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SECTION 8.13. ACTIONS UNDER CERTAIN DOCUMENTS.
Borrower shall not cause or suffer to exist or become effective any
modification, replacement, cancellation or rescission of any of the
Subordinated Debt or any indentures, agreements or other documents evidencing
or governing the same, nor shall Borrower make any payment on any of the
Subordinated Debt (or redeem or purchase the same) in violation of any
subordination provisions governing such Indebtedness.
SECTION 8.14. CERTAIN LITIGATION PAYMENTS. Borrower
shall not use the proceeds of any of the Loans or the Collateral to pay more
than $1,500,000 in aggregate payments to or for the account of the claimants or
their counsel to settle or otherwise satisfy or resolve any of the litigation
described in item 2 of Schedule 6.03 attached hereto.
ARTICLE IX.
EVENTS OF DEFAULT
SECTION 9.01. EVENTS OF DEFAULT. Each of the following
events shall constitute an Event of Default under this Agreement:
(i) failure by Borrower to pay any of the Obligations
(whether principal, interest, fees or other amounts) when and
as the same become due and payable (whether at maturity, on
demand, or otherwise), and, in the case of any failure to pay
any interest, fees or other amounts (other than the principal
of the Loans) due hereunder, the continuation of such failure
for ten (10) days after the due date of such payment; or
(ii) Borrower or any Subsidiary shall (1) apply for or
consent to the appointment of or the taking of possession by a
receiver, custodian, trustee or liquidator of Borrower or any
Subsidiary or of all or a substantial part of the property of
Borrower or any Subsidiary, (2) admit in writing the inability
of Borrower or any Subsidiary, or be generally unable, to pay
the debts of Borrower or any Subsidiary as such debts become
due, (3) make a general assignment for the benefit of the
creditors of Borrower or any Subsidiary, (4) commence a
voluntary case under the Bankruptcy Code (as now or hereafter
in effect), (5) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of
debts, (6) fail to controvert in a timely or appropriate
manner, or acquiesce in writing to, any petition filed against
Borrower or any Subsidiary in an involuntary case under the
Bankruptcy Code, or (7) take any action for the purpose of
effecting any of the foregoing; or
(iii) a proceeding or case shall be commenced, without
the application of Borrower or any Subsidiary, in any court of
competent jurisdiction, seeking (1) the liquidation,
reorganization, dissolution, winding-up or composition or
readjustment of debts of Borrower or any Subsidiary, (2) the
appointment of a
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trustee, receiver, custodian, liquidator or the like of
Borrower or any Subsidiary or of all or any substantial part
of the assets of Borrower or any Subsidiary, or (3) similar
relief in respect of Borrower or any Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-up
or composition and adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be
entered and continue in effect, for a period of sixty (60)
days from commencement of such proceeding or case or the date
of such order, judgment or decree, or any order for relief
against Borrower or any Subsidiary shall be entered in an
involuntary case or proceeding under the Bankruptcy Code; or
(iv) any representation or warranty made by Borrower
herein or by Borrower or any other Credit Party in any of the
other Credit Documents shall be false or misleading in any
material respect on the date as of which made (or deemed
made); or
(v) any default shall occur in the performance or
observance of any term, condition or provision contained in
Section 6.01(b), 7.01(i), 7.01(j), 7.01(l), 7.02, 7.09, 7.10
or Article VIII of this Agreement; or
(vi) any default shall occur in the performance or
observance of any term, condition or provision contained in
this Agreement and not referred to in clauses (i) through (v)
above, which default shall continue for thirty (30) days after
the earlier of the date Borrower acquires knowledge thereof or
the Agent or any Lender gives Borrower written notice thereof;
(vii) any material provision of this Agreement or any
other Credit Document shall at any time for any reason cease
to be valid and binding in accordance with its terms on
Borrower or any Guarantor, or the validity, enforceability, or
priority thereof shall be contested by Borrower or any
Guarantor, or Borrower or any Guarantor shall terminate or
repudiate (or attempt to terminate or repudiate) any Credit
Document executed by it; provided, however, that this
paragraph (vii) shall not apply to the termination or release
of any Credit Document (or the termination of the application
thereof to a particular Credit Party or its assets) which
results solely from a sale or other disposition of such Credit
Party or its assets to the extent such sale or disposition
permitted under Section 4.17 hereof or to the extent otherwise
consented to by the Required Lenders (or all of the Lenders if
otherwise required under Section 11.08 of this Agreement); or
(viii) the occurrence of an Event of Default under (and
after giving effect to any notice and/or cure rights expressly
provided in) any of the other Credit Documents; or
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(ix) default in the payment of principal of or
interest on any other obligation of Borrower or any Subsidiary
for money borrowed (or any obligation under conditional sale
or other title retention agreement or any obligation secured
by purchase money mortgage or deed to secure debt or any
obligation under notes payable or drafts accepted representing
extensions of credit or on any Capitalized Lease Obligation),
or default in the performance of any other agreement, term or
condition contained in any indenture or agreement under which
any such obligation is created, guaranteed or secured if the
effect of such default is to entitle the holder or holders of
such obligation (or a trustee on behalf of such holder or
holders) to cause such obligation to become due prior to its
stated maturity; provided that in each and every case noted
above the aggregate then outstanding principal balance of the
obligation involved (or all such obligations combined) must
equal or exceed $1,000,000; or
(x) default in the payment of principal of or
interest on any obligation of Borrower or any Subsidiary for
money borrowed from any Lender or any Affiliate of a Lender
(other than an Obligation) or on any Capitalized Lease
Obligation with a Lender or any Affiliate of a Lender, or
default in the performance of any other agreement, term, or
condition contained in any agreement under which any such
obligation is created, guaranteed or secured if the effect of
such default is to entitle such Lender or Affiliate to then
cause such obligation to become due prior to its stated
maturity (the parties intend that a default may constitute an
Event of Default under this paragraph (x) even if such default
would not constitute an Event of Default under paragraph (ix)
immediately above); or
(xi) a judgment or order for the payment of money, in
excess of $1,000,000 or otherwise having a Material Adverse
Effect, except to the extent fully covered by insurance
meeting the requirements of Section 7.04 hereof and as to
which the insurer has not denied coverage in writing shall be
rendered against the Borrower or any of its Subsidiaries, and
such judgment or order shall not be released, vacated, stayed
or fully bonded-off within thirty (30) days after the date of
its issue or entry; or
(xii) the acquisition after the date of this Agreement
by any Person (other than a present officer of the Borrower),
or by any two or more Persons acting in concert (other than
the present officers of the Borrower), of beneficial ownership
(within the meaning of Rule 13d-3 of the SEC under the
Securities Exchange Act of 1934) of forty percent (40%) or
more of the outstanding voting stock of the Borrower; or
(xiii) a Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates:
(1) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such
Plan, Section 412 of the Code or Section 302 of ERISA for any
plan year or a
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waiver of such standard is sought or granted with respect to
such Plan under applicable law, the terms of such Plan or
Section 412 of the Code or Section 303 of ERISA; or (2) is
being, or has been, terminated or is the subject of
termination proceedings under applicable law or the terms of
such Plan; or (3) shall require a Consolidated Company to
provide security under applicable law, the terms of such Plan,
Section 401 or 412 of the Code or Section 306 or 307 of ERISA;
or (4) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan or Title IV of ERISA;
and in any of the cases described in clauses (1), (2), (3) or
(4) above there shall result from any such failure, waiver,
termination or other event a liability to the PBGC or a Plan
that has had or could reasonably be expected to have a
Material Adverse Effect; or
(xiv) David E. McDowell shall no longer continue to
serve as the chairman of Borrower's Board of Directors and as
Borrower's chief executive officer unless, in the event of his
resignation, discharge, retirement, disappearance, disability
or death, he is replaced by Borrower's Board of Directors with
a chairman and chief executive officer who is reasonably
acceptable to the Required Lenders; or
(xv) if the Borrower shall at any time own and control
less than the percentage of the outstanding capital stock of
any Guarantor owned or acquired by the Borrower on the date
that such Person became a Guarantor hereunder unless either
(1) such Guarantor is dissolved or is merged into or
consolidated with another Consolidated Company or (2) such
Guarantor is HRI or any of the BSG Subsidiaries and the shares
of such Guarantor are sold in a transaction not requiring the
Required Lenders' consent under Section 4.17 hereof.
SECTION 9.02. REMEDIES. Upon the occurrence of an
Event of Default, the Agent shall, upon the written request of the Required
Lenders, exercise one or more of the following remedies:
(i) by written notice to Borrower, terminate the
Lenders' respective remaining Revolving Loan Commitments,
whereupon the Revolving Loan Commitments shall terminate
immediately and any remaining accrued but unpaid Commitment
Fees shall become forthwith due and payable without any other
notice or demand of any kind; and
(ii) by written notice to Borrower, declare the
principal of and any accrued interest on the Notes and all
other Obligations, to be, and whereupon the same shall become,
immediately due and payable, and the same shall thereupon
become due and payable without further demand, presentment,
protest or notice of any kind, all of which are hereby
expressly waived by Borrower; and
(iii) exercise all or any of its rights and remedies as
it may otherwise have under any of the other Credit Documents
or any applicable law;
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provided, however, that upon the occurrence of an Event of Default specified in
Section 9.01(ii) or Section 9.01(iii) above, the result which would occur upon
the giving of notice pursuant to Section 9.02(i) and (ii) shall occur
automatically without the giving of any such notice. No failure or delay on
the part of the Agent or the Lenders to exercise any right or remedy hereunder
or under the Credit Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy hereunder preclude any
further exercise thereof or the exercise of any further right or remedy
hereunder or under the Credit Documents. No exercise by the Agent or the
Lenders of any remedy under the other Credit Documents shall operate as a
limitation on any rights or remedies of the Agent or the Lenders under this
Agreement, except to the extent of moneys actually received by the Agent or the
Lenders under the other Credit Documents.
ARTICLE X.
THE AGENT
SECTION 10.01. APPOINTMENT OF AGENT. is
hereby appointed by the Lenders to be the Agent with full power and
authority to act as herein specified. Each Lender hereby irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and the other Credit Documents and to exercise such powers and
to perform such duties hereunder and thereunder as are specifically delegated
to or required of the Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Agent may perform any of its
duties hereunder by or through its agents or employees.
SECTION 10.02. NATURE OF DUTIES OF AGENT. The Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement and the other Credit Documents. Neither the Agent nor any of
its officers, directors, employees or agents shall be liable for any action
taken or omitted by it as such hereunder or in connection herewith, unless
caused by its or their gross negligence or willful misconduct. The duties of
the Agent shall be mechanical and administrative in nature; the Agent shall not
have by reason of this Agreement any fiduciary duties to any Lender; and
nothing in this Agreement, express or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein or
therein.
SECTION 10.03. LACK OF RELIANCE ON AGENT.
(a) Independently and without reliance upon the Agent,
each Lender, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and the other Credit Parties in connection with the
taking or not taking of any action in connection herewith, and (ii) its own
appraisal of the creditworthiness of the Borrower and the other Credit Parties,
and, except as expressly provided in this Agreement, the Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter.
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(b) The Agent shall not be responsible to any Lender
for any recitals, statements, information, representations or warranties herein
or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement, the
Notes, the Security Documents, or any other Credit Documents, or the financial
condition of the Borrower or any other Credit Party, or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement, the Notes, the Security Documents
or the other Credit Documents, or the financial condition of the Borrower or
any other Credit Party, or the existence or possible existence of any Default
or Event of Default.
SECTION 10.04. CERTAIN RIGHTS OF AGENT. If the Agent
shall request instructions from the Required Lenders with respect to any act or
action (including the failure to act) in connection with this Agreement or any
other Credit Document, the Agent shall be entitled to refrain from such act or
taking such action unless and until the Agent shall have received instructions
from the Required Lenders; and the Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, but subject
to the terms of Section 11.08 hereof, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
Section 10.05. Reliance by Agent. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person.
The Agent may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 10.06. INDEMNIFICATION OF AGENT. To the extent
that Agent is not reimbursed and indemnified by the Borrower, the Lenders will
reimburse and indemnify the Agent, ratably according to their respective Pro
Rata Shares of the Lenders' total outstanding Revolving Loan Commitments (or,
if the Revolving Loan Commitments are no longer outstanding, according to their
respective pro rata shares of the total outstanding Obligations), for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or any of
the other Credit Documents; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suites, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct.
SECTION 10.07. AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its Revolving Loan Commitments under this Agreement or any of the
other Credit Documents, the Loans made by it, and the Notes issued to it, the
Agent shall have the same rights and powers hereunder as
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any other Lender and may exercise the same as though it were not performing the
duties specified herein; and the terms "Lenders", "Required Lenders", or any
similar terms used herein shall, unless the context clearly otherwise
indicates, include the Agent in its individual capacity. The Agent may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust, financial advisory or other business with the Borrower or any affiliate
of the Borrower as if it were not performing the duties specified herein, and
may accept fees and other consideration from the Borrower for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
SECTION 10.08. HOLDERS OF NOTES. The Agent may deem
and treat the payee of any Note as the owner thereof for all purposes hereof
unless and until a written notice of the assignment or transfer thereof shall
have been filed with the Agent pursuant to Section 11.05 below. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or
any Note issued in exchange therefor.
SECTION 10.09. SUCCESSOR AGENT.
(a) The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any time
with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right, upon five days' notice to
the Borrower, to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then, upon
five days' notice to the Borrower, the retiring Agent may, on behalf of the
Borrower, appoint a successor Agent, which shall be a bank which maintains an
office in the United States, or a commercial bank organized under the laws of
the United States of America or any State thereof, or any Affiliate of such
bank, having a combined capital and surplus of at least $100,000,000. Unless
any such successor Agent is already a Lender hereunder, such Agent's long-term
debt, if rated by Standard & Poor's Corporation or Moody's Investors Service,
Inc., must have a rating of not less than "BBB-" or "Baa 3", respectively, at
the time of its appointment, except to the extent permitted by the Borrower.
Each such successor Agent must be acceptable to the Borrower; provided,
however, that (i) Borrower agrees not to unreasonably withhold or delay such
acceptance and (ii) Borrower shall have no such acceptance right at any time
when a Default or Event of Default has occurred and is continuing.
(b) 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 under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
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SECTION 10.10. SECURITY DOCUMENTS, NOTICE OF DEFAULTS,
ETC.
(a) Each Lender hereby authorizes the Agent to enter
into each of the Security Documents and to take all actions contemplated
thereby. All rights and remedies under the Security Documents may be exercised
by the Agent for the benefit of the Lenders and the other beneficiaries thereof
upon the terms thereof. With the consent of the Required Lenders, the Agent
may assign its rights and obligations as Agent under any of the Security
Documents to any affiliate of the Agent or to any trustee, which assignee in
each such case must assume all obligations of the Agent, and thereafter shall
be entitled to all the rights of the Agent, under the applicable Security
Document and all rights hereunder of the Agent with respect to the applicable
Security Document.
(b) In each circumstance where, under any provision of
any Security Document, the Agent shall have the right to grant or withhold any
consent, exercise any remedy, make any determination or direct any action by
the Agent under such Security Document, the Agent shall act in respect of such
consent, exercise of remedies, determination or action, as the case may be,
with the consent of and at the direction of the Required Lenders; provided,
however, that no such consent of the Required Lenders shall be required with
respect to any consent, determination or other matter that is, in the Agent's
judgment, ministerial or administrative in nature. In each circumstance where
any consent of or direction from the Required Lenders is required, the Agent
shall send to the Lenders a written notice setting forth a description in
reasonable detail of the matter as to which consent or direction is requested
and the Agent's proposed course of action with respect thereto. In the event
the Agent shall not have received a response from any Lender within ten (10)
Business Days after the giving of such notice, such Lender shall be deemed to
have agreed to the course of action proposed by the Agent.
(c) The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
the Agent has received notice from a Lender or Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall promptly give notice thereof to the other Lenders. The
Agent shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders; provided that unless
and until the Agent shall receive such directions, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable and in
the best interest of the Lenders.
(d) All references in this Article X or in any
Security Document to any Lender shall be deemed to include, without limitation,
such Lender (or any Affiliate thereof) which is the holder of any Cash
Management Services Obligations.
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ARTICLE XI.
MISCELLANEOUS
SECTION 11.01. NOTICES. All notices, requests and
other communications hereunder shall be in electronic, telephonic (confirmed in
writing) or written (including telecopier or similar writing) form and shall be
given to the party to whom sent, addressed to it, if directed to the Agent, to:
Attn:
Telecopy:
and if directed to Borrower, to:
Medaphis Corporation
2840 Cumberland Parkway
Suite 300
Atlanta, Georgia 30339
Attn: Chief Financial Officer
Telecopy: (770) 444-4503
with a copy to: Medaphis Corporation
2840 Cumberland Parkway
Suite 300
Atlanta, Georgia 30339
Attn: General Counsel
Telecopy: (770) 444-4502
and if directed to any Lender, to its address as shown on Annex I attached
hereto, or to such other address or telephone or telecopier number as any such
party may hereafter specify for the purpose by notice to the other parties.
Each such notice, request or communication shall be effective (i) if given by
telecopy, when such communication is transmitted to the telecopy number herein
specified, (ii) if given by mail, three (3) Business Days after such
communication is deposited in the United States mail with first class postage
prepaid, return receipt requested, addressed as aforesaid, (iii) if sent for
overnight delivery by Federal Express or other reputable national overnight
delivery service, one (1) Business Day after such communication is entrusted to
such service for overnight delivery and with recipient signature required,
addressed as aforesaid, or (iv) if given by any other means, when delivered at
the address of the party to whom such notice is being delivered.
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SECTION 11.02. NO WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of the Agent or any Lender in exercising any right
or remedy hereunder and no course of dealing between any Credit Party and the
Agent or any Lender shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy hereunder or under the Notes preclude
any other or further exercise thereof or the exercise of any other right or
remedy hereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Agent or any
Lender would otherwise have. No notice to or demand on any Credit Party not
required hereunder or under the Note in any case shall entitle any Credit Party
to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent or any Lender to any other or
further action in any circumstances without notice or demand.
SECTION 11.03. PAYMENT OF EXPENSES; INDEMNITY.
(a) Borrower shall:
(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable out-of-pocket
costs and expenses of the Agent incurred in connection with
the administration (both before and after the execution hereof
and including advice of counsel as to the rights and duties of
the Agent with respect thereto) of, or in connection with the
preparation, execution and delivery of, preservation of rights
under, enforcement of, or any refinancing, renegotiation or
restructuring of, this Agreement or any other Credit Document
or any instruments referred to therein or any amendment,
waiver or consent relating thereto, including, without
limitation, the reasonable fees and disbursements of counsel
for the Agent (including further, without limitation, the
allocated cost of in-house counsel) and
(ii) pay and hold each Lender harmless from and against
any and all present and future stamp, documentary, property,
ad valorem or other similar non-income taxes with respect to
this Agreement, any of the Notes or any other Credit
Documents, any Collateral described therein, or any payments
due thereunder, and save each Lender harmless from and against
any and all liabilities with respect to or resulting from any
delay or omission to pay such taxes.
(b) In addition to the other amounts payable by
Borrower under this Agreement (including, without limitation, subsection (a)
above), Borrower hereby agrees to pay and indemnify each of the Agent and the
Lenders from and against all claims, liabilities, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses,
including further, without limitation, the allocated cost of in-house counsel)
which the Agent or such Lender may (other than as a result of the gross
negligence or willful misconduct of such Person) incur or be subjected to as a
consequence, directly or indirectly, of (i) any actual or proposed use of any
proceeds of the Loans or any Credit Party's entering into or performing under
any Credit Document, (ii) any breach by the Borrower or any of its Subsidiaries
of any warranty, term or condition in, or the occurrence of any other default
under, this Agreement or
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any of the other Credit Documents, including without limitation all reasonable
attorney's fees or expenses resulting from the settlement or defense of any
claims or liabilities arising as a result of any such breach or default, (iii)
allegations of participation or interference by the Agent or any Lender in the
management, contractual relations or other affairs of the Borrower or any
Subsidiary, (iv) the Agent's or any Lender's holding any Lien on or
administering any of the Collateral, (v) allegations that the Agent or any
Lender has joint liability with the Borrower or any Subsidiary to any third
party for any reason, or (vi) any suit, investigation or proceeding as to which
the Agent or any Lender is involved as a consequence, directly or indirectly,
of its execution of this Agreement or any of the other Credit Documents, the
making of any Loan, the holding of any Lien on any of the Collateral or any
other event or transaction contemplated by this Agreement or any of the Credit
Documents.
(c) Notwithstanding anything to the contrary in this
Section 11.03, (i) Borrower shall be obligated to pay, without limitation, the
respective reasonable attorney's fees, adviser fees (including, without
limitation, the allocated cost of in-house counsel), and other expenses of each
of , , and relating to this
Agreement and all related transactions and (ii) Borrower shall be obligated to
pay each other Lender's reasonable attorney's fees (including, without
limitation, the allocated cost of in-house counsel), other adviser's fees and
other expenses incurred from and after December 11, 1996 with respect to this
Agreement and all related transactions; provided, however, that so long as no
Default or Event of Default has occurred and is then continuing, Borrower's
liability for the attorney's fees (including, without limitation, the allocated
cost of in-house counsel), other adviser's fees and other expenses incurred by
any Lender in any one calendar month shall not exceed $15,000.
SECTION 11.04. RIGHT OF SET-OFF.
(a) To the fullest extent permitted by law, upon the
occurrence and during the continuance of any Event of Default, each Lender is
hereby authorized at any time and from time to time, without prior notice to
Borrower (any such notice being expressly waived by Borrower), to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of Borrower against any of the Obligations
of Borrower now or hereafter existing under this Agreement, or any of the other
Credit Documents, irrespective of whether such Lender shall have made any
demand hereunder or thereunder and although such obligations may be unmatured.
Each Lender shall endeavor in good faith to give prompt notice of any such
set-off to the Borrower, the Agent and each other Lender as promptly as
practical after such set-off has occurred.
(b) Each Lender agrees promptly to notify Borrower or
the Agent after any set-off and application, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
Subject to the provisions of subsection (a), the rights of each Lender under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
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(c) The proceeds of any Lender's exercise of any
set-off rights as aforesaid shall be shared with the Agent and the other
Lenders to the extent required under Section 4.09 above.
SECTION 11.05. ASSIGNMENTS AND PARTICIPATIONS.
(a) No Lender may assign all or any portion of its
rights and obligations under this Agreement to another Person without first
obtaining the prior written consent of the Agent to the proposed assignment,
and the consent of the Agent to any such assignment shall not be unreasonably
withheld or delayed.
(b) If the Agent gives its written consent to an
assignment, then the following provisions shall apply to such assignment:
(i) Each such assignment shall be for a fixed
percentage of all or a certain portion of the rights and
obligations of the assigning Lender (the "Assigning Lender")
under this Agreement;
(ii) The amount of the Assigning Lender's Revolving
Loan Commitments (determined as of the date of the Assignment
and Acceptance Agreement with respect to such assignment)
being assigned shall be not less than $5,000,000 (or such
lesser sum as may equal 100% of the Assigning Lender's
Revolving Loan Commitment as in effect immediately prior to
such assignment); and
(iii) The Assigning Lender shall pay the Agent an
administrative fee of $2,500 upon the occurrence of such
assignment.
(c) From and after the Effective Date (as defined in
the related Assignment and Acceptance Agreement) of each assignment,
(i) the assignee shall be a party hereto and, to the
extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance
Agreement, shall have the rights and obligations of a Lender
hereunder; and
(ii) the Assigning Lender shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance Agreement,
relinquish its rights and be released from its obligations
under this Agreement, and, in the case of an Assignment and
Acceptance Agreement covering all or the remaining portion of
an Assigning Lender's rights and obligations under this
Agreement, such Assigning Lender shall cease to be a party
hereto, but the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted be taken by it
or on its behalf while it was a Lender under this Agreement.
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(d) By executing and delivering an Assignment and
Acceptance Agreement, the Assigning Lender and the assignee represent and
warrant to each other, the Borrower, the Agent and the other Lenders as
follows:
(i) other than as expressly provided in such
Assignment and Acceptance Agreement, such Assigning Lender
makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement
or any of the other Credit Documents or with respect to the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any of the other
Credit Documents;
(ii) the Assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of the other Credit
Parties or the performance or observance by the Borrower or
the other Credit Parties of their respective obligations under
this Agreement or any of the other Credit Documents;
(iii) the assignee has received a copy of this Agreement
and the Security Documents, together with copies of such
financial statements 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
Agreement;
(iv) such assignee will, independently and without
reliance upon the Agent, the Assigning Lender or any other
Lender and based on such documents and information as it shall
be appropriate at the time, continue to make its own credit
decision in taking or not taking any action under this
Agreement or the other Credit Documents;
(v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf hereunder and to
exercise such powers under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers as
are incidental thereto; and
(vi) such assignee shall perform in accordance with the
terms hereof all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender,
including without limitation its obligation hereunder to fund
its portion of any Loans it is required to fund hereunder.
(e) Upon its receipt of an Assignment and Acceptance
Agreement executed by an Assigning Lender and an assignee, together with the
Note subject to such assignment, and provided such assignment satisfies all
other requirements of this Section 11.05, the Agent shall:
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(i) accept such Assignment and Acceptance Agreement;
(ii) give notice thereof to the Borrower and the other
Lenders within five (5) days after its receipt of such notice,
and the Borrower (at its own expense) shall execute and
deliver to the Agent in exchange for the surrendered Note a
new Note payable to the order of such assignee in an amount
equal to the Revolving Loan Commitment assumed by such
assignee pursuant to such Assignment and Acceptance Agreement
and, if the assigning Lender has retained a Revolving Loan
Commitment hereunder, a new Note payable to the order of the
Assigning Lender in an amount equal to the Revolving Loan
Commitment retained by such Assigning Lender hereunder (such
new Note shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note, shall
be dated the date of the surrendered Note and shall otherwise
be in substantially the form of Exhibit A-1 and Exhibit A-2
attached hereto, as appropriate, and the Note surrendered by
the Assigning Lender shall be returned by the Agent to the
Borrower marked "cancelled"); and
(iii) promptly issue to the Borrower and each of the
Lenders a revised Annex I to this Agreement reflecting such
assignment, which revised Annex I shall supersede and replace
the prior version thereof and shall be substituted by each
party in lieu thereof.
(f) Any Lender may grant participation interests to
participants of any and all of such Lender's rights or obligations under this
Agreement and any other Credit Document; provided, however, that unless
otherwise consented to in writing by the Agent: (i) the Agent and the Borrower
shall continue to deal solely with such Lender, (ii) the participant shall not
have any direct rights under this Agreement or any other Credit Document,
except as provided below, and (iii) the participant's rights against such
Lender with respect to its participation shall be those set forth in the
agreement executed by such Lender in favor of such participant, except that no
holder of a participation shall be entitled to require such Lender to take or
omit to take any action under this Agreement or any other Credit Documents
other than action directly affecting the principal amount of, or any payment
date for interest or principal on, the Loans or any reduction in the rate of
interest or fees payable with respect to the Loans or the Revolving Loan
Commitments or extending the Credit Expiration Date. No participant shall have
any direct rights against any Credit Party but shall only have rights derived
from the Lender which granted such participant's participation interest. Each
Lender shall promptly notify the Agent of each such participation interest
granted by such Lender.
(g) Any Lender may at any time assign all or any
portion of its rights in this Agreement and the Notes issued to it to a Federal
Reserve Bank; provided, that no such assignment shall release such Lender from
any of its obligations hereunder.
(h) If (i) any Taxes referred to in Section 4.04(e)
have been levied or imposed so as to require withholdings or deductions by
Borrower and payment by Borrower of additional amounts to any Lender as a
result thereof, or (ii) any Lender shall make demand for payment of
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any material additional amounts as compensation for increased costs pursuant to
Section 4.08 or for its reduced rate of return pursuant to Section 4.06, then
and in such event, upon request from Borrower delivered to such Lender and the
Agent, such Lender shall assign, in accordance with and subject to the
provisions of Section 11.05 hereof, all of its rights and obligations under
this Agreement and the other Credit Documents to another Lender (or another
Person selected by Borrower who is an Eligible Assignee acceptable to the
Agent), in consideration for the payment by such assignee to such Lender of the
principal of, and interest on, all outstanding Loans of such Lender accrued
through the date of such assignment, and the assumption by such assignee of
such Lender's Revolving Loan Commitments hereunder, together with the payment
to such Lender of any and all other amounts owing to such Lender under any
provisions of this Agreement or the other Credit Documents accrued through the
date of such assignment.
SECTION 11.06. FURTHER ASSURANCES. Upon notice from
the Agent, Borrower will, at any and all times, execute and deliver all such
further documents, assignments, recordings, filings, transfers and assurances
(other than Lessor Waivers and Consents) as may be reasonably necessary for the
better assuring and confirming of all of the rights, revenues and other funds
pledged or assigned to or mortgaged for the payment of its obligations
hereunder, or intended so to be. Borrower hereby authorizes and empowers the
Agent to file any financing or continuation statement or any amendments thereto
with respect to any of the Collateral and the Agent's Liens therein or in
accordance with the Uniform Commercial Code of the State of Georgia or any
other applicable jurisdiction without the signature of Borrower.
SECTION 11.07. BENEFIT OF AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and permitted assigns of the parties hereto; provided
that Borrower may not assign or transfer any of its interest hereunder without
the prior written consent of the Required Lenders and the Lenders may not
assign or transfer any of their interests hereunder except in accordance with
Section 11.05 hereof.
SECTION 11.08. AMENDMENTS; EXERCISE OF DISCRETION.
(a) Except for any revisions of Annex I hereto made in
accordance with Section 2.05, 2.06, 3.05 or 11.05 hereof, no amendment or
waiver of any provision of this Agreement or the other Credit Documents, nor
consent to any departure by the Borrower or any other Credit Party therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders, do any of the following: (i) waive any of the
conditions specified in Section 5.01 hereof, (ii) increase the Revolving Loan
Commitments of any or all of the Lenders, increase the Swingline Loan Limit or
subject any or all of the Lenders to any additional obligations, (iii) reduce
the principal of, or interest or fees on, any of the Loans or Revolving Loan
Commitments, (iv) extend the Credit Expiration Date or the Swingline
Termination Date or postpone any date fixed for payment of any principal,
interest or fees due hereunder or under any of the Notes (other than the
extension of the July 31, 1997 Revolving Loan Commitment reduction set forth in
Section 2.06(a) hereof to a date not later than September 30, 1997 which may be
granted by the Required Lenders in
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writing in their discretion), (v) change the percentage of any of the Revolving
Loan Commitments (except to the extent permitted under Sections 2.05, 2.06,
3.05 or 11.05 hereof), (vi) change the definition of "Required Lenders" as used
herein, or otherwise change the number or identity of Lenders which shall be
required for the Agent or the Lenders (or any of them) to take or refrain from
taking any action hereunder, (vii) except as required by Section 4.17 hereof,
release any of the Credit Parties from liability for any of the Obligations or
release any material portion of the Collateral, or (viii) amend this Section
11.08(a), (ix) waive or amend, or consent to any departure from, any of the
provisions of Sections 2.01(c) hereof, (x) waive or amend Section 8.06's
prohibition on Acquisitions or consent to any Acquisition by Borrower or any of
its Subsidiaries, or (xi) waive or amend, or consent to any departure from, the
provisions of Section 8.11 which prohibit any Subsidiary of Borrower from
entering into after the date of this Agreement any Guaranty of any Capitalized
Lease Obligations of Borrower or another of its Subsidiaries to any Lender or
any Affiliate of any Lender.
(b) Unless otherwise specifically indicated, if any
agreement, certificate or other writing, or any action taken or to be taken, is
by the terms of this Agreement required to be satisfactory to the Agent, the
Required Lenders or any Lender, the determination of such satisfaction shall be
made by the Agent, the Required Lenders or such Lender (as the case may be) in
such Person's or Persons' sole and exclusive judgment.
(c) Notwithstanding anything in this Section 11.08 to
the contrary, no amendment, waiver or consent shall affect the rights or duties
of the Agent under this Agreement or any other Credit Document unless it is
consented to in writing by the Agent.
SECTION 11.09. TIME OF ESSENCE. Time is of the essence
of this Agreement and each of the other Credit Documents.
SECTION 11.10. GOVERNING LAW. This Agreement is
intended to be performed in the State of Georgia, and shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Georgia.
SECTION 11.11. COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
SECTION 11.12. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date
on which all of the parties hereto shall have signed a copy hereof (whether the
same or different copies) and the Agent shall have received the same.
(b) All representations and warranties made herein, in
the certificates, reports, notices, and other documents delivered pursuant to
this Agreement shall survive the execution and delivery of this Agreement, the
other Credit Documents, and such other agreements and
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documents, the making of the Loans hereunder, the execution and delivery of the
Notes and the exercise or expiration of the Warrants.
SECTION 11.13. SEVERABILITY. In case any provision in
or Obligation under this Agreement or the other Credit Documents shall be
invalid, illegal or unenforceable, in whole or in part, in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 11.14. INDEPENDENCE OF COVENANTS. All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise within the limitation
of, another covenant, shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
SECTION 11.15. HEADINGS DESCRIPTIVE. The headings of
the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 11.16. TERMINATION OF AGREEMENT. At such time
as (i) none of the Lenders is obligated any longer under this Agreement
(whether by the terms hereof or as a result of a release of such obligations by
the Borrower) to make any further Loans, and (ii) all Obligations for the
payment of money (other than (x) indemnity obligations not yet due and payable
and (y) Cash Management Services Obligations) have been paid and satisfied in
full, this Agreement and the other Credit Documents shall terminate and each
Lender shall surrender to the Borrower any Note which such Lender then holds,
and each Lender and the Agent shall promptly release, or cause to be released,
all Liens granted by any Credit Party under the Credit Documents as security
for any of the Obligations; provided, however, that any and all indemnity
obligations of Borrower or any Subsidiary to the Agent or the Lenders arising
hereunder or under any of the other Credit Documents shall survive the
termination of this Agreement or such other Credit Documents.
SECTION 11.17. ENTIRE AGREEMENT. This Agreement and
the other Credit Documents constitute the entire agreement among the Credit
Parties, the Agent and the Lenders with respect to Revolving Loan Commitments,
the Loans, the other Obligations and the Collateral and supersede all prior
agreements, representations and understandings related to such subject matters.
SECTION 11.18. CONFIDENTIALITY. Unless otherwise
agreed to in writing by the Borrower, the Agent and each Lender hereby agree to
keep all Proprietary Information confidential and not to disclose or reveal any
Proprietary Information to any Person other than its (or its Affiliates)
directors, officers, employees, agents or representatives who reasonably
require such information in connection with their activities concerning this
Agreement or the transactions contemplated hereby and to actual or potential
Lenders, assignees and participants who are bound by similar confidentiality
provisions; provided, however, that the Agent and any
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Lender may disclose Proprietary Information (a) as required by any applicable
laws, rules, regulations or judicial process, (b) on a confidential basis to
its attorneys, accountants and other advisors and (c) to bank regulatory
authorities or other governmental authorities.
SECTION 11.19. ADDITIONAL PROVISIONS.
(a) The Borrower hereby represents and warrants that
there are no claims, causes of action, suits, debts, Liens, obligations,
liabilities, demands, losses, costs or expenses (including attorney's fees) of
any kind, character, or nature whatsoever, fixed or contingent, which the
Borrower or any of its Subsidiaries may have or claim to have against any of
the Lenders or the Agent and which arise out of or are connected with any act
of commission or omission of any of the Lenders or the Agent existing or
occurring prior to the execution and delivery of this Agreement, including
without limitation, any claims, liabilities or obligations arising with respect
to the 1993 Credit Agreement or the other Credit Documents (as defined herein
or in the 1993 Credit Agreement).
(b) The Borrower hereby (a) releases, acquits and
forever discharges each of the Agent, the Lenders, and their respective agents,
employees, officers, directors, servants, representatives, attorneys,
Affiliates, successors and assigns (collectively, the "Released Parties") from
any and all liabilities, claims, suits, debts, Liens, losses, causes of action,
demands, rights, damages, costs and expenses of any kind, character or nature
whatsoever, known or unknown, fixed or contingent, that the Borrower may have
or claim to have against such Released Party and which arises out of or is
connected with any action of commission or omission of any Released Party
existing or occurring prior to the execution and delivery of this Agreement,
including without limitation, any claims, liabilities or obligations relating
to or arising out of or in connection with the loans, guarantees and other
obligations of the Borrower or any of the Subsidiaries under the 1993 Credit
Agreement or the other Credit Documents (as defined herein or in the 1993
Credit Agreement) (including, without limitation, arising out of or in
connection with the initiation, negotiation, closing or administration of the
transactions contemplated thereby or related thereto), from the beginning of
time until the execution and delivery of this Agreement (collectively, the
"Released Claims") and (b) agrees forever to refrain (and to cause its
Subsidiaries to refrain) from commencing, instituting or prosecuting any
lawsuit, action or other proceeding against any of the Released Parties with
respect to any of the Released Claims. Notwithstanding anything herein to the
contrary, the Released Claims do not include the Lenders' and the Agent's
respective obligations under this Agreement and the other Credit Documents.
SECTION 11.20. JURY TRIAL WAIVER; CONSENT TO FORUM.
(a) THE BORROWER, THE AGENT AND EACH LENDER
IRREVOCABLY WAIVE ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER CREDIT DOCUMENTS OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
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(b) THE BORROWER, THE AGENT AND EACH LENDER ALSO AGREE
THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OF
THE OTHER CREDIT DOCUMENTS OR TO ENFORCE ANY JUDGMENT OBTAINED AGAINST BORROWER
OR ANY OTHER CREDIT PARTY IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY
THE AGENT, THE LENDERS OR THE BORROWER IN THE COURTS OF THE STATE OF GEORGIA
SITTING IN FULTON COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA, OR IN ANY OTHER COURT TO THE JURISDICTION OF
WHICH BORROWER OR SUCH OTHER CREDIT PARTY OR ANY OF ITS PROPERTY IS OR MAY BE
SUBJECT. THE BORROWER, THE AGENT AND EACH LENDER IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF GEORGIA SITTING IN FULTON COUNTY AND
OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, AND
IRREVOCABLY WAIVES ANY PRESENT OR FUTURE OBJECTION TO VENUE IN ANY SUCH COURT,
AND ANY PRESENT OR FUTURE CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM,
IN CONNECTION WITH ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OF THE OTHER CREDIT DOCUMENTS.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in their behalf as of the date
first above stated.
BORROWER:
MEDAPHIS CORPORATION
/s/ Medaphis Corporation
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