1
Exhibit 10.2
================================================================================
CREDIT AGREEMENT
DATED AS OF
AUGUST 1, 1997
AMONG
NCS HEALTHCARE, INC.
AS BORROWER
THE LENDING INSTITUTIONS NAMED THEREIN
AS LENDERS
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
NBD BANK
AS CO-AGENT
===============================================================================
2
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND TERMS......................................................................... 1
1.1. Certain Defined Terms......................................................................... 1
1.2. Computation of Time Periods................................................................... 17
1.3. Accounting Terms.............................................................................. 17
1.4. Terms Generally............................................................................... 17
SECTION 2. AMOUNT AND TERMS OF LOANS..................................................................... 18
2.1. Commitments for Loans......................................................................... 18
2.2. Minimum Borrowing Amounts, etc.; Pro Rata Borrowings.......................................... 18
2.3. Notice of Borrowing........................................................................... 19
2.4. Disbursement of Funds......................................................................... 20
2.5. Refunding of, or Participation in, Swing Line Revolving Loans................................. 20
2.6. Notes......................................................................................... 21
2.7. Conversions of General Revolving Loans........................................................ 22
2.8. Interest...................................................................................... 22
2.9. Interest Periods.............................................................................. 25
2.10. Increased Costs, Illegality, etc.............................................................. 26
2.11. Compensation.................................................................................. 27
2.12. Change of Lending Office; Replacement of Lenders.............................................. 28
SECTION 3. LETTERS OF CREDIT............................................................................. 28
3.1. Letters of Credit............................................................................. 28
3.2. Letter of Credit Requests: Notices of Issuance................................................ 29
3.3. Agreement to Repay Letter of Credit Drawings.................................................. 30
3.4. Letter of Credit Participations............................................................... 30
3.5. Increased Costs............................................................................... 32
3.6. Guaranty of Subsidiary Letter of Credit Obligations........................................... 32
SECTION 4. FEES; COMMITMENTS............................................................................. 34
4.1. Fees.......................................................................................... 34
4.2. Voluntary Reduction of Commitments............................................................ 35
4.3. Mandatory Adjustments of Commitments, etc..................................................... 35
4.4. Extension of Maturity Date.................................................................... 35
SECTION 5. PAYMENTS...................................................................................... 35
5.1. Voluntary Prepayments......................................................................... 35
5.2. Mandatory Prepayments......................................................................... 36
5.3. Method and Place of Payment................................................................... 37
5.4. Net Payments.................................................................................. 38
SECTION 6. CONDITIONS PRECEDENT.......................................................................... 39
6.1. Conditions Precedent at Closing Date.......................................................... 39
6.2. Conditions Precedent to All Credit Events..................................................... 40
SECTION 7. REPRESENTATIONS AND WARRANTIES................................................................ 40
7.1. Corporate Status, etc......................................................................... 40
7.2. Subsidiaries.................................................................................. 40
7.3. Corporate Power and Authority, etc............................................................ 40
7.4. No Violation.................................................................................. 41
3
Page
7.5. Governmental Approvals........................................................................ 41
7.6. Litigation.................................................................................... 41
7.7. Use of Proceeds; Margin Regulations........................................................... 41
7.8. Financial Statements, etc..................................................................... 41
7.9. No Material Adverse Change.................................................................... 42
7.10. Tax Returns and Payments...................................................................... 42
7.11. Title to Properties, etc...................................................................... 42
7.12. Lawful Operations, etc........................................................................ 43
7.13. Environmental Matters......................................................................... 43
7.14. Compliance with ERISA......................................................................... 43
7.15. Intellectual Property, etc.................................................................... 44
7.16. Investment Company............................................................................ 44
7.17. Burdensome Contracts; Labor Relations......................................................... 44
7.18. Existing Indebtedness......................................................................... 44
7.19. True and Complete Disclosure.................................................................. 44
SECTION 8. AFFIRMATIVE COVENANTS......................................................................... 45
8.1. Reporting Requirements........................................................................ 45
8.2. Books, Records and Inspections................................................................ 48
8.3. Insurance..................................................................................... 48
8.4. Payment of Taxes and Claims................................................................... 48
8.5. Corporate Franchises.......................................................................... 48
8.6. Good Repair................................................................................... 48
8.7. Compliance with Statutes, etc................................................................. 49
8.8. Compliance with Environmental Laws............................................................ 49
8.9. Fiscal Years, Fiscal Quarters................................................................. 49
8.10. Certain Subsidiaries to Join in Subsidiary Guaranty........................................... 50
8.11. Pledge of Additional Stock; Release of Collateral............................................. 50
8.12. Most Favored Covenant Status.................................................................. 51
8.13. Senior Debt................................................................................... 51
SECTION 9. NEGATIVE COVENANTS............................................................................ 51
9.1. Changes in Business........................................................................... 51
9.2. Consolidation, Merger or Sale of Assets, etc.................................................. 51
9.3. Liens......................................................................................... 53
9.4. Indebtedness.................................................................................. 54
9.5. Advances, Investments, Loans and Guaranty Obligations......................................... 55
9.6. Total Net Indebtedness/Consolidated EBITDA Ratio.............................................. 57
9.7. Total Senior Indebtedness/Consolidated EBITDA Ratio........................................... 57
9.8. Interest Coverage Ratio....................................................................... 57
9.9. Minimum Consolidated Net Worth................................................................ 57
9.10. Prepayments and Refinancings of Subordinated Debt, etc........................................ 57
9.11. Transactions with Affiliates.................................................................. 57
9.12. Limitation on Certain Restrictive Agreements.................................................. 58
9.13. Limitation on Sale and Lease-Back Transactions................................................ 58
9.14. Plan Terminations, Minimum Funding, etc....................................................... 58
SECTION 10. EVENTS OF DEFAULT............................................................................. 59
10.1. Events of Default............................................................................. 59
10.2. Acceleration, etc............................................................................. 60
10.3. Application of Liquidation Proceeds........................................................... 61
ii
4
Page
SECTION 11. THE ADMINISTRATIVE AGENT...................................................................... 61
11.1. Appointment................................................................................... 61
11.2. Delegation of Duties.......................................................................... 62
11.3. Exculpatory Provisions........................................................................ 62
11.4. Reliance by Administrative Agent.............................................................. 62
11.5. Notice of Default............................................................................. 62
11.6. Non-Reliance.................................................................................. 63
11.7. Indemnification............................................................................... 63
11.8. The Administrative Agent in Individual Capacity............................................... 63
11.9. Successor Administrative Agent................................................................ 63
11.10. Other Agents.................................................................................. 64
SECTION 12. MISCELLANEOUS................................................................................. 64
12.1. Payment of Expenses etc....................................................................... 64
12.2. Right of Setoff............................................................................... 65
12.3. Notices....................................................................................... 65
12.4. Benefit of Agreement.......................................................................... 65
12.5. No Waiver: Remedies Cumulative................................................................ 67
12.6. Payments Pro Rata............................................................................. 67
12.7. Calculations: Computations.................................................................... 67
12.8. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial........................ 68
12.9. Counterparts.................................................................................. 68
12.10. Effectiveness................................................................................. 68
12.11. Headings Descriptive.......................................................................... 68
12.12. Amendment or Waiver........................................................................... 68
12.13. Survival...................................................................................... 69
12.14. Domicile of Loans............................................................................. 69
12.15. Confidentiality............................................................................... 69
12.16. Lender Register............................................................................... 69
12.17. Limitations on Liability of the Letter of Credit Issuers...................................... 70
12.18. General Limitation of Liability............................................................... 70
12.19. No Duty....................................................................................... 70
12.20. Lenders and Agent Not Fiduciary to Borrower, etc.............................................. 71
12.21. Margin Stock.................................................................................. 71
12.22. Survival of Representations and Warranties.................................................... 71
iii
5
ANNEX I - INFORMATION AS TO LENDERS
ANNEX II - INFORMATION AS TO SUBSIDIARIES
ANNEX III - DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV - DESCRIPTION OF EXISTING LIENS
ANNEX V - DESCRIPTION OF EXISTING ADVANCES, LOANS,
INVESTMENTS AND GUARANTEES
ANNEX VI - DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER THE
CREDIT AGREEMENT
EXHIBIT A-1 - FORM OF GENERAL REVOLVING NOTE
EXHIBIT A-2 - FORM OF SWING LINE REVOLVING NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF NOTICE OF CONVERSION
EXHIBIT B-3 - FORM OF LETTER OF CREDIT REQUEST
EXHIBIT C-1 - FORM OF SUBSIDIARY GUARANTY
EXHIBIT C-2 - FORM OF PLEDGE AGREEMENT
EXHIBIT D - FORM OF OPINION OF SPECIAL COUNSEL TO THE BORROWER
EXHIBIT E - FORM OF ASSIGNMENT AGREEMENT
EXHIBIT F - FORM OF SECTION 5.4(b)(ii) CERTIFICATE
iv
6
CREDIT AGREEMENT, dated as of August 1, 1997, among the following:
(i) NCS HEALTHCARE, INC., a Delaware corporation (herein,
together with its successors and assigns, the "BORROWER");
(ii) the lending institutions listed in Annex I hereto (each a
"LENDER" and collectively, the "LENDERS");
(iii) KEYBANK NATIONAL ASSOCIATION, a national banking
association, as administrative agent (the "ADMINISTRATIVE AGENT"); and
(iv) NBD BANK, a Michigan bank, as Co-Agent:
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms used herein
and defined in section 1 are used herein as so defined.
(2) The Borrower has applied to the Lenders for credit facilities in
order to refinance certain indebtedness of the Borrower and in order to provide
working capital and funds for other lawful purposes.
(3) The Borrower has requested that the credit facilities be secured by
the Pledge Agreement, covering only the stock presently owned by the Borrower in
its directly owned Wholly-Owned Subsidiaries, subject to the right of the
Borrower, as provided herein, to obtain the release of all Collateral covered by
the Pledge Agreement.
(4) Subject to and upon the terms and conditions set forth herein, the
Lenders are willing to make available to the Borrower the credit facilities
provided for herein.
NOW, THEREFORE, it is agreed:
SECTION 1. DEFINITIONS AND TERMS.
1.1. CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires:
"ADMINISTRATIVE AGENT" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to section 11.9.
"AFFILIATE" shall mean, with respect to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such person. A person shall be deemed to control a second
person if such first person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors or managers of such second person or (ii) to direct or cause the
direction of the management and policies of such second person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, a director, officer or employee of a person shall not, solely by
reason of such status, be considered an Affiliate of such person.
7
"AGREEMENT" shall mean this Credit Agreement, as the same may be from
time to time further modified, amended and/or supplemented.
"APPLICABLE EURODOLLAR MARGIN" shall have the meaning provided in
section 2.8(g).
"APPLICABLE FACILITY FEE RATE" shall have the meaning provided in
section 4.1(a).
"APPLICABLE LENDING OFFICE" shall mean, with respect to each Lender,
(i) such Lender's Domestic Lending Office in the case of Borrowings consisting
of Prime Rate Loans (or, in the case of any Borrowings of Swing Line Revolving
Loans consisting of Money Market Rate Loans), and (ii) such Lender's Eurodollar
Lending Office in the case of Borrowings consisting of Eurodollar Loans.
"ASSET SALE" shall mean the sale, transfer or other disposition
(including by means of mergers, consolidations, and liquidations of a
corporation, partnership or limited liability company of the interests therein
of the Borrower or any Subsidiary) by the Borrower or any Subsidiary to any
person other than the Borrower or any Subsidiary of any of their respective
assets (other than sales, transfers or other dispositions of obsolete or excess
furniture, fixtures, equipment or other property, tangible or intangible, in the
ordinary course of business).
"ASSIGNMENT AGREEMENT" shall mean an Assignment Agreement substantially
in the form of Exhibit E hereto.
"AUTHORIZED OFFICER" shall mean any officer or employee of the Borrower
designated as such in writing to the Administrative Agent by the Chief Financial
Officer, the Secretary or an Assistant Secretary of the Borrower.
"AVAILABLE COMMITMENT AMOUNT" shall mean at any time an amount which is
the lesser of
(i) the Total General Revolving Commitment at such time,
and
(ii) an amount equal to (A) three times the sum of (1) the
Borrower's Consolidated EBITDA for its two consecutive fiscal quarters
most recently ended for which financial statements have been delivered
pursuant to section 8.1(b), annualized to a full period of four fiscal
quarters, and (2) to the extent not included pursuant to the preceding
clause (1), the aggregate earnings before interest, income taxes,
depreciation and amortization of all Permitted Acquisitions which have
been or are being contemporaneously completed for their respective most
recently completed fiscal year for which annual audited financial
statements (or unaudited financial statements, if such unaudited
financial statements are also included in other consolidated or
combined audited financial statements) are available and have been
delivered to the Administrative Agent; REDUCED BY (B) the aggregate
principal amount of Total Senior Indebtedness (other than the Notes) at
such time.
"BANKRUPTCY CODE" shall have the meaning provided in section 10.1(h).
"BORROWER" shall have the meaning provided in the first paragraph of
this Agreement.
"BORROWING" shall mean the incurrence of Loans consisting of one Type
of Loan, by the Borrower from all of the Lenders having Commitments in respect
thereof on a PRO RATA basis on a given date (or resulting from conversions on a
given date), having in the case of Eurodollar Loans the same Interest Period.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the city in which the Payment Office is located a legal holiday or a day on
which banking institutions are authorized by law or other governmental actions
to close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on,
2
8
Eurodollar Loans, any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in U.S. dollar deposits in
the interbank Eurodollar market.
"CAPITAL LEASE" as applied to any person shall mean any lease of any
property (whether real, personal or mixed) by that person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities identified as "capital lease
obligations" (or any similar words) on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP.
"CASH EQUIVALENTS" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit, money market deposits and bankers'
acceptances of (x) any Lender or (y) any bank whose short-term commercial paper
rating from S&P is at least A-2 or the equivalent thereof or from Moody's is at
least P-2 or the equivalent thereof (any such bank, an "APPROVED LENDER"), in
each case with maturities of not more than two years from the date of
acquisition, (iii) repurchase obligations with a term not more than 30 days for
underlying securities of the types described in clause (i) entered into with any
Lender or Approved Lender, (iv) commercial paper issued by any Lender or
Approved Lender or by the parent company of any Lender or Approved Lender and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody's,
or guaranteed by any industrial company with a long term unsecured and
unsupported debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing within 270
days after the date of acquisition, PROVIDED that the aggregate principal amount
of commercial paper so acquired which is issued by any single issuer shall not
exceed $25,000,000, (v) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any polictical subdivision or
taxing authority thereof, and rated at least A by S&P or A by Moody's, (vi)
investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (i) through (v) above,
and (vii) investments in money market funds utilized by a Lender or an Approved
Lender in conjunction with "sweep" accounts maintained for commercial customers.
"CASH PROCEEDS" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, but only as and
when so received) received by the Borrower and/or any Subsidiary from such Asset
Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean and include any of the following:
(i) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the
Borrower's Board of Directors (together with any new directors whose
election by the Borrower's Board of Directors or whose nomination for
election by the Borrower's shareholders was approved by a vote of at
least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the directors then in office,
(ii) any person or group (as such term is defined in section
13(d)(3) of the 1934 Act), other than the Current Control Group, shall
acquire, directly or indirectly, beneficial ownership (within the
3
9
meaning of Rule 13d-3 and 13d-5 of the 1934 Act) of more than 30%, on a
fully diluted basis, of the voting interest in the Borrower's capital
stock,
(iii) the Current Control Group shall, for any reason, cease
to have, directly or indirectly, beneficial ownership (within the
meaning of Rule 13d-3 and 13d-5 of the 1934 Act) of at least 30%, on a
fully diluted basis, of the voting interest in the Borrower's capital
stock,
(iv) the full time active employment of Kevin B. Shaw as chief
executive officer of the Borrower shall be voluntarily terminated by
the Borrower or Mr. Shaw (other than by reason of death or disability),
unless a successor acceptable to the Required Lenders shall have been
appointed or elected and actually taken office within six months
following any such termination, in which case the name of such
successor shall be substituted for the name of the person he or she
replaces for purposes of this clause (iv),
(v) the shareholders of the Borrower approve (A) a merger or
consolidation of the Borrower with any other person, other than a
merger or consolidation which would result in the voting securities of
the Borrower outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted or
exchanged for voting securities of the surviving or resulting entity)
more than 75% of the combined voting power of the voting securities of
the Borrower or such surviving or resulting entity outstanding after
such merger or consolidation, or (B) a merger or consolidation effected
to implement a recapitalization of the Borrower (or similar
transaction), other than any such transaction in which no person or
group (as hereinabove defined) not excepted from the provisions of
clause (ii) above acquires more than 30% of the combined voting power,
on a fully diluted basis, of the Borrower's then outstanding voting
securities,
(vi) the shareholders of the Borrower approve a plan of
complete liquidation of the Borrower or an agreement or agreements for
the sale or disposition by the Borrower of all or substantially all of
the Borrower's assets, and/or
(vii) any "Change of Control" or similar term as defined in
any other agreement or instrument evidencing or governing Indebtedness
of the Borrower or any Subsidiary.
As used herein, the term "CURRENT CONTROL GROUP" shall mean the members of the
Board of Directors and the executive officers of the Borrower as of the
Effective Date, their spouses, children, parents and siblings, the trustee of
any trust created for the benefit of any such member of the Board of Directors,
officer or family member, the executor or administrator (in his or her capacity
as such) of the estate of any such member of the Board of Directors, officer or
family member, and any person who receives Class B Common Stock of the Borrower
under the last will and testament of, or under the laws of descent and
distribution from, any such member of the Board of Directors, officer or family
member.
"CLOSING DATE" shall mean the date, on or after the Effective Date,
upon which the conditions specified in section 6.1 are satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"COLLATERAL" shall mean any collateral covered by any Security
Document.
"COLLATERAL AGENT" shall mean the Administrative Agent acting as
Collateral Agent for the Lenders pursuant to the Security Documents.
4
10
"COMMITMENT" shall mean with respect to each Lender its General
Revolving Commitment or its Swing Line Revolving Commitment, as the case may be.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events amounts expended or capitalized under Capital Leases
but excluding any amount representing capitalized interest) by the Borrower and
its Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant or equipment reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any period,
(A) Consolidated Net Income for such period; PLUS
(B) the sum of the amounts for such period included in
determining such Consolidated Net Income of (i) Total Interest Expense,
(ii) Total Income Tax Expense, (iii) amortization or write-off of
deferred financing costs, and (iv) extraordinary (and other one-time)
non-cash losses and charges; LESS
(C) gains on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary gains and other one-time
non-cash gains; all as determined for the Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP;
PROVIDED that Consolidated EBIT for any period shall include the appropriate
financial items for any person or business which has been acquired by the
Borrower for any portion of such period prior to the date of acquisition which
are covered by audited financial statements of such person or business unit (or
unaudited financial statements, if such unaudited financial statements are
included in other audited consolidated or combined financial statements) which
have been delivered to the Administrative Agent, except that if any portion of
such period is not so covered by such audited (or unaudited, as aforesaid)
financial statements, the most recent corresponding period which is so covered
by audited (or unaudited, as aforesaid) financial statements so delivered shall
be used.
"CONSOLIDATED EBITDA" shall mean, for any period, the sum of the
amounts for such period of (i) Consolidated EBIT, (ii) Total Depreciation
Expense, and (iii) Total Amortization Expense, all as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
PROVIDED that Consolidated EBITDA for any period shall include the appropriate
financial items for any person or business which has been acquired by the
Borrower for any portion of such period prior to the date of acquisition which
are covered by audited financial statements of such person or business unit (or
unaudited financial statements, if such unaudited financial statements are
included in other audited consolidated or combined financial statements) which
have been delivered to the Administrative Agent, except that if any portion of
such period is not so covered by such audited (or unaudited, as aforesaid)
financial statements, the most recent corresponding period which is so covered
by audited (or unaudited, as aforesaid) financial statements so delivered shall
be used.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income (or
loss), without deduction for minority interests, of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, PROVIDED that there shall
be excluded therefrom (i) the income, (or loss) of any entity (other than
Subsidiaries of the Borrower) in which the Borrower or any of its Subsidiaries
has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of its Subsidiaries during
such period, (ii) the income (or loss) of any entity accrued prior to the date
it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries or on which its assets are acquired by
the Borrower or any of its Subsidiaries, and (iii) the income of any Subsidiary
of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary.
5
11
"CONSOLIDATED NET WORTH" shall mean at any time for the determination
thereof all amounts which, in conformity with GAAP, would be included under the
caption "total stockholders' equity" (or any like caption) on a consolidated
balance sheet of the Borrower as at such date.
"CONVERTIBLE SUBORDINATED DEBENTURES DUE 2004" shall mean the
Convertible Subordinated Debentures due 2004 issued by the Borrower as
contemplated by the Preliminary Offering Memorandum dated July 17, 1997, in the
same or a lesser (but not less than $100 million) or a greater aggregate
principal amount (and any convertible debt securities having the same or
substantially the same terms which may be issued in exchange therefor or in
replacement thereof).
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, the Subsidiary
Guaranty and any Letter of Credit Document.
"CREDIT EVENT" shall mean the making of any Loans and/or the issuance
of any Letter of Credit.
"CREDIT PARTY" shall mean the Borrower and each of its Subsidiaries
which is a party to any Credit Document.
"DEFAULT" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with, respect to which a
Lender Default is in effect.
"DESIGNATED HEDGE AGREEMENT" shall mean any Hedge Agreement to which
the Borrower or any of its Subsidiaries is a party which, pursuant to a written
instrument signed by the Required Lenders, has been designated as a Designated
Hedge Agreement so that the Borrower's or Subsidiaries's counterparty's credit
exposure thereunder will be entitled to share in the benefits of the Subsidiary
Guaranty and the Security Documents to the extent such Subsidiary Guaranty or
Security Documents provide guarantees or collateral for creditors of the
Borrower or any Subsidiary under Designated Hedge Agreements. The Required
Lenders may impose as a condition to any designation of a Designated Hedge
Agreement a requirement that the counterparty enter into an intercreditor or
similar agreement with the Administrative Agent under which recoveries from the
Borrower and its Subsidiaries with respect to such Designated Hedge Agreement
will be shared in a manner consistent with the provisions of section 10.3
hereof.
"DOLLARS", "U.S. DOLLARS", "DOLLARS" and the sign "$" each means lawful
money of the United States.
"DOMESTIC LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Domestic Lending Office in Annex I or in
the Assignment Agreement pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EFFECTIVE DATE" shall have the meaning provided in section 12.10.
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in SEC
Regulation D), in each case which (i) is not disapproved in writing by the
Borrower in a notice given to a requesting Lender and the Administrative Agent,
specifying the reasons for such disapproval, within five Business Days following
the giving of notice to the Borrower of the identity of any proposed transferee
(any such disapproval by the Borrower must be reasonable, it being understood
that increased costs under section 2.10 hereof shall be deemed a reasonable
basis for disapproval), PROVIDED that the Borrower shall not be entitled to
exercise the foregoing right of disapproval if and so long as any Event of
Default shall have occurred and be continuing; and (ii) is not a direct
competitor of the Borrower or engaged in the same or similar business as the
Borrower, or any of its respective Subsidiaries or is not an Affiliate of any
such competitors of the Borrower or any of its respective Subsidiaries.
6
12
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law or any permit issued under any such law
(hereafter "CLAIMS"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the storage, treatment or Release (as defined
in CERCLA) of any Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of common
law now or hereafter in effect and in each case as amended, and any binding and
enforceable judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment issued to or
rendered against the Borrower or any of its Subsidiaries relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C. section 7401 ET SEQ.;
the Safe Drinking Water Act, 42 U.S.C. section 3803 ET SEQ.; the Oil Pollution
Act of 1990, 33 U.S.C. section 2701 ET SEQ.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. section 11001 ET SEQ., the
Hazardous Material Transportation Act, 49 U.S.C. section 1801 ET SEQ. and the
Occupational Safety and Health Act, 29 U.S.C. section 651 ET SEQ. (to the extent
it regulates occupational exposure to Hazardous Materials); and any state and
local or foreign counterparts or equivalents, in each case as amended from time
to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower would be
deemed to be a "single employer" (i) within the meaning of section 414(b),(c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary of
the Borrower being or having been a general partner of such person.
"EURODOLLAR LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Eurodollar Lending Office in Annex I or
in the Assignment Agreement pursuant to which it became a Lender, or such other
office or offices for Eurodollar Loans of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR LOANS" shall mean each Loan bearing interest at the rates
provided in section 2.8(a)(ii).
"EURODOLLAR RATE" shall mean with respect to each Interest Period for a
Eurodollar Loan, (A) either (i) the rate per annum for deposits in Dollars of
amounts in same day funds comparable to the outstanding principal amount of the
Eurodollar Loan for which an interest rate is then being determined for a
maturity most nearly comparable to such Interest Period which appears on page
3750 of the Dow Jones Telerate Screen as of 11:00 A.M. (local time at the Notice
Office) on the date which is two Business Days prior to the commencement of such
Interest Period, or (ii) if such a rate does not appear on such page, an
interest rate per annum equal to the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in Dollars are offered to each of the
Reference Banks by prime banks in the London interbank Eurodollar market for
deposits of amounts in Dollars in same day funds comparable to the outstanding
principal amount of the Eurodollar Loan for which an interest rate is then being
determined with maturities comparable to the Interest Period to be applicable to
such Eurodollar Loan, determined as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period, in
each case divided (and rounded upward to the nearest whole multiple of 1/16th of
1%) by (B) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves and without
7
13
benefit of credits for proration, exceptions or offsets which may be available
from time to time) applicable to any member bank of the Federal Reserve System
in respect of Eurocurrency liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"EVENT OF DEFAULT" shall have the meaning provided in section 10.1.
"EXISTING INDEBTEDNESS" shall have the meaning provided in section
7.18.
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meaning provided in
section 7.18.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in section
3.1(d).
"FACILITY" shall mean the General Revolving Facility or the Swing Line
Revolving Facility, as applicable.
"FACILITY FEE" shall have the meaning provided in section 4.1(a).
"FACING FEE" shall have the meaning provided in section 4.1(c).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
section 4.1.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary (i) which is not
incorporated in the United States and substantially all of whose assets and
properties are located, or substantially all of whose business is carried on,
outside the United States, or (ii) substantially all of whose assets consist of
Subsidiaries that are Foreign Subsidiaries as defined in clause (i) of this
definition.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to section 12.7(a).
"GENERAL REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the amount, if any, set forth opposite such Lender's name in Annex I as its
"General Revolving Commitment" as the same may be reduced from time to time
pursuant to section 4.2, 4.3 and/or 10 or adjusted from time to time as a result
of assignments to or from such Lender pursuant to section 12.4.
"GENERAL REVOLVING FACILITY" shall mean the facility evidenced by the
Total General Revolving Commitment.
"GENERAL REVOLVING FACILITY PERCENTAGE" shall mean at any time for any
Lender with a General Revolving Commitment, the percentage obtained by dividing
such Lender's General Revolving Commitment by the Total General Revolving
Commitment, PROVIDED, that if the Total General Revolving Commitment has been
terminated, the General Revolving Facility Percentage for each Lender with a
General Revolving Commitment shall be determined by dividing such Lender's
General Revolving Commitment immediately prior to such termination by the Total
General Revolving Commitment immediately prior to such termination.
8
14
"GENERAL REVOLVING LOAN" shall have the meaning provided in section
2.1(a).
"GENERAL REVOLVING NOTE" shall have the meaning provided in section
2.6(a)(i).
"GUARANTY OBLIGATIONS" shall mean as to any person (without
duplication) any obligation of such person guaranteeing any Indebtedness
("PRIMARY INDEBTEDNESS") of any other person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such person, whether or not contingent, (a) to purchase any such
primary Indebtedness or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary Indebtedness or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary Indebtedness of the
ability of the primary obligor to make payment of such primary Indebtedness, or
(d) otherwise to assure or hold harmless the owner of such primary Indebtedness
against loss in respect thereof, PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary Indebtedness in respect of which such Guaranty Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.
"HEDGE AGREEMENT" shall mean (i) any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other similar
agreement or arrangement designed to protect against fluctuations in interest
rates, and (ii) any currency swap agreement, forward currency purchase agreement
or similar agreement or arrangement designed to protect against fluctuations in
currency exchange rates.
"HAZARDOUS MATERIALS" shall mean (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (ii) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "restricted hazardous materials", "extremely hazardous
wastes", "restrictive hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect, under any applicable Environmental Law.
"INDEBTEDNESS" of any person shall mean without duplication:
(i) all indebtedness of such person for borrowed money,
(ii) all bonds, notes, debentures and similar debt securities
of such person,
(iii) the deferred purchase price of capital assets or
services which in accordance with GAAP would be shown on the liability
side of the balance sheet of such person,
(iv) the face amount of all letters of credit issued for the
account of such person and, without duplication, all drafts drawn
thereunder,
(v) all Indebtedness of a second person secured by any Lien on
any property owned by such first person, whether or not such
Indebtedness has been assumed, up to the greater of (A) the portion of
such Indebtedness equivalent to the fair value of such property, and
(B) if such Indebtedness has been assumed by such first person, the
amount thereof so assumed,
(vi) all Capitalized Lease Obligations of such person,
9
15
(vii) the present value, determined on the basis of the
implicit interest rate, of all basic rental obligations under all
"synthetic" leases (i.e. leases accounted for by the lessee as
operating leases under which the lessee is the "owner" of the leased
property for Federal income tax purposes,
(viii) all obligations of such person to pay a specified
purchase price for goods or services whether or not delivered or
accepted, I.E., take-or-pay and similar obligations,
(ix) all net obligations of such person under Hedge Agreements
and
(x) the full outstanding balance of trade receivables, notes
or other instruments sold with full or limited recourse, other than
solely for purposes of collection of delinquent accounts, and
(xi) all Guaranty Obligations of such person,
PROVIDED that neither trade payables and accrued expenses, in each case arising
in the ordinary course of business, nor obligations in respect of insurance
policies or performance or surety bonds which themselves are not guarantees of
Indebtedness (nor drafts, acceptances or similar instruments evidencing the same
nor obligations in respect of letters of credit supporting the payment of the
same), shall constitute Indebtedness.
"INTEREST COVERAGE RATIO" shall mean, for any Testing Period, the ratio
of (i) Consolidated EBIT to (ii) Total Interest Expense, in each case on a
consolidated basis for the Borrower and its Subsidiaries for such Testing
Period.
"INTEREST PERIOD" with respect to any Eurodollar Loan shall mean the
interest period applicable thereto, as determined pursuant to section 2.9.
"KEYBANK" shall mean KeyBank National Association, a national banking
association, together with its successors and assigns.
"LEASEHOLDS" of any person means all the right, title and interest of
such person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"LENDER" shall have the meaning provided in the first paragraph of this
Agreement.
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) of a Lender in violation of the requirements of this Agreement to
make available its portion of any incurrence of Loans or to fund its portion of
any unreimbursed payment under section 3.4(c) or (ii) a Lender having notified
the Administrative Agent and/or the Borrower that it does not intend to comply
with the obligations under section 2.1 and/or section 3.4(c), in the case of
either (i) or (ii) as a result of the appointment of a receiver or conservator
with respect to such Lender at the direction or request of any regulatory agency
or authority.
"LENDER REGISTER" shall have the meaning provided in section 12.16.
"LETTER OF CREDIT" shall have the meaning provided in section 3.1(a).
"LETTER OF CREDIT DOCUMENTS" shall have the meaning specified in
section 3.2(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in section
4.1(b).
"LETTER OF CREDIT ISSUER" shall mean (i) in respect of each Existing
Letter of Credit, the Lender that has issued same as of the Effective Date; and
(ii) in respect of any other Letter of Credit, (1) KeyBank, and/or (2) such
other Lender that is requested, and agrees, to so act by the Borrower, and is
approved by the Administrative Agent. Unless otherwise agreed between the
Borrower and KeyBank, KeyBank will be the only Letter of Credit Issuer.
10
16
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum,
without duplication, of (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in section
3.2(a).
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).
"LOAN" shall have the meaning provided in section 2.1.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of, when used with reference to the Borrower or any of
its Subsidiaries, the Borrower and its Subsidiaries, taken as a whole, or when
used with reference to any other person, such person and its Subsidiaries, taken
as a whole, as the case may be.
"MATERIAL SUBSIDIARY" shall mean, at any time, with reference to any
person, any Subsidiary of such person that (x) has assets at such time
comprising 5% or more of the consolidated assets of such person and its
Subsidiaries or (y) had net income in the most recently ended fiscal year of
such person comprising 5% or more of the consolidated net income of such person
and its Subsidiaries for such fiscal year.
"MATURITY DATE" shall mean July 31, 2000, unless earlier terminated, or
extended in accordance with section 4.4.
"MINIMUM BORROWING AMOUNT" shall mean (i) for General Revolving Loans
which are (A) Prime Rate Loans, $3,000,000, with minimum increments thereafter
of $1,000,000 and (B) Eurodollar Loans, $3,000,000, with minimum increments
thereafter of $1,000,000; and (ii) for Swing Line Revolving Loans, $250,000,
with minimum increments thereafter of $100,000.
"MONEY MARKET RATE LOAN" shall mean each Swing Line Revolving Loan
bearing interest at a rate provided in section 2.8(b)(ii).
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan, as defined in
section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions or has within any of the
preceding three plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" shall mean an employee benefit plan, other
than a Multiemployer Plan, to which the Borrower or any ERISA Affiliate, and one
or more employers other than the Borrower or an ERISA Affiliate, is making or
accruing an obligation to make contributions or, in the event that any such plan
has been terminated, to which the Borrower or an ERISA Affiliate made or accrued
an obligation to make contributions during any of the five plan years preceding
the date of termination of such plan.
"NET CASH PROCEEDS" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of (i) reasonable and customary expenses
of sale incurred in connection with such Asset Sale, and other reasonable and
customary fees and expenses incurred, and all state, and local taxes paid or
reasonably estimated to be payable by such person, as a consequence of such
Asset Sale and the payment of principal, premium and interest of Indebtedness
secured by the asset which is the subject of the Asset Sale and required to be,
and which is, repaid under the terms thereof as a result of such Asset Sale,
(ii) amounts of any distributions payable to
11
17
holders of minority interests in the relevant person or in the relevant property
or assets and (iii) incremental income taxes paid or payable as a result
thereof.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"NON-DEFAULTING LENDER" shall mean each Lender other than a Defaulting
Lender.
"NOTE" shall mean a General Revolving Note or a Swing Line Revolving
Note, as the case may be.
"NOTICE OF BORROWING" shall have the meaning provided in section
2.3(a).
"NOTICE OF CONVERSION" shall have the meaning provided in section 2.7.
"NOTICE OFFICE" shall mean the principal office of the Administrative
Agent. Such office is presently at Key Center, 127 Public Square, Cleveland,
Ohio 44114, Attention: Large Corporate Group (facsimile: (216) 689- 4981). If
the Administrative Agent changes its principal office, or a successor
Administrative Agent is appointed as provided herein, the Notice Office will be
such other principal office, located in a city in the United States Eastern Time
Zone, as the Administrative Agent may designate to the Borrower.
"OBLIGATIONS" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing by the
Borrower or any other Credit Party to the Administrative Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"PARTICIPANT" shall have the meaning provided in section 3.4(a).
"PAYMENT OFFICE" shall mean the principal office of the Administrative
Agent. Such office is presently at Key Center, 127 Public Square, Cleveland,
Ohio 44114, Attention: Large Corporate Group (telephone: (216) 689- 4448;
facsimile: (216) 689-4981). If the Administrative Agent changes its principal
office, or a successor Administrative Agent is appointed as provided herein, the
Payment Office will be such other principal office, located in a city in the
United States Eastern Time Zone, as the Administrative Agent may designate to
the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"PERCENTAGE" shall mean the General Revolving Facility Percentage or
the Swing Line Revolving Facility Percentage, as applicable.
"PERMITTED ACQUISITION" shall mean and include (i) any acquisition on a
going concern basis (whether by purchase, lease or otherwise) of facilities and
businesses operated by persons who are not Subsidiaries of the Borrower, and
(ii) acquisitions of equity or other similar interests in such persons (whether
by merger, stock purchase or otherwise); PROVIDED, that no such transaction
shall be considered a Permitted Acquisition if
(A) such transaction is actively opposed by the Board of
Directors (or similar governing body) of the selling person or the
person whose equity interests are to be acquired, UNLESS all of the
Lenders consent to such transaction;
(B) both (1) at the time thereof and after giving effect
thereto, the ratio of the Borrower's Total Net Indebtedness to
Consolidated EBITDA for any Testing Period would exceed 3.00 to 1.00,
and (2) the aggregate consideration for such transaction (including the
principal amount of any assumed Indebtedness and (without duplication)
any Indebtedness of any acquired person or persons), would exceed an
amount equal to 10% of the Borrower's Total Assets as of the end of its
most recently completed fiscal period for which financial statements
have been delivered hereunder, UNLESS the
12
18
Required Lenders, in the exercise of reasonable and prudent business
judgment, giving due consideration for the Borrower's continued
compliance with section 9.6, consent to such transaction (which consent
shall be presumed in the case of any Lender if within five Business
Days after such Lender received written notification from the Borrower
or the Administrative Agent describing in reasonable detail such
transaction, such Lender fails to notify the Administrative Agent and
the Borrower in writing that such Lender does not intend to consent to
such transaction); or
(C) as a result thereof the Borrower or any Subsidiary
acquires any equity interest in any person and such person does not by
virtue of such transaction become a Subsidiary of the Borrower.
Notwithstanding the foregoing, the term Permitted Acquisition specifically
excludes expenditures (including the purchase of adjacent land) to expand then
existing facilities owned by the Borrower or any Subsidiary on the Effective
Date or acquired pursuant to a Permitted Acquisition, and any loans, advances or
investments otherwise permitted pursuant to section 9.5.
"PERMITTED LIENS" shall mean Liens described in section 9.3.
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" shall mean any multiemployer or single-employer plan as defined
in section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute by) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, or a Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"PLEDGE AGREEMENT" shall have the meaning provided in section 6.1(c).
"PRIME RATE" shall mean, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the greater of (i) the rate of interest established by
KeyBank in Cleveland, Ohio, from time to time, as its prime rate, whether or not
publicly announced, which interest rate may or may not be the lowest rate
charged by it for commercial loans or other extensions of credit; and (ii) the
Federal Funds Effective Rate in effect from time to time PLUS 1/2 of 1% per
annum.
"PRIME RATE LOAN" shall mean each Loan bearing interest at the rate
provided in section 2.8(a)(i) or 2.8(b)(i).
"PROHIBITED TRANSACTION" shall mean a transaction with respect to a
Plan that is prohibited under section 4975 of the Code or section 406 of ERISA
and not exempt under section 4975 of the Code or section 408 of ERISA.
"QUOTED RATE" shall have the meaning provided in section 2.3(b).
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 ET SEQ.
"REAL PROPERTY" of any person shall mean all of the right, title and
interest of such person in and to land, improvements and fixtures, including
Leaseholds.
"REFERENCE BANKS" shall mean (i) KeyBank and NBD Bank, and (ii) any
other Lender or Lenders selected as a Reference Bank by the Administrative Agent
and the Required Lenders, PROVIDED, that if any of such Reference Banks is no
longer a Lender, such other Lender or Lenders as may be selected by the
Administrative Agent acting on instructions from the Required Lenders.
13
19
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"REPORTABLE EVENT" shall mean an event described in section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC
Regulation section 2615.
"REQUIRED LENDERS" shall mean Non-Defaulting Lenders whose outstanding
General Revolving Loans and Unutilized General Revolving Commitments constitute
at least 66+2/3% of the sum of the total outstanding General Revolving Loans and
Unutilized General Revolving Commitments of Non-Defaulting Lenders (PROVIDED
that, for purposes hereof, neither the Borrower, nor any of its Affiliates,
shall be included in (i) the Lenders holding such amount of the General
Revolving Loans or having such amount of the Unutilized General Revolving
Commitments, or (ii) determining the aggregate unpaid principal amount of the
General Revolving Loans or Unutilized General Revolving Commitments).
"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with any
person providing for the leasing by the Borrower or any Subsidiary of the
Borrower of any property (except for temporary leases for a term, including any
renewal thereof, of not more than one year and except for leases between the
Borrower and a Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Borrower or such Subsidiary to such person.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., and its successors.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC REGULATION D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"SECTION 5.4(b)(ii) CERTIFICATE" shall have the meaning provided in
section 5.4(b)(ii).
"SECURITY DOCUMENTS" shall mean the Pledge Agreement and each other
document pursuant to which any Lien or security interest is granted by any
Credit Party to the Collateral Agent as security for any of the Obligations.
"STATED AMOUNT" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions or other
requirements for drawing could then be met, but taking into account any drawings
which have already been made thereunder).
"SUBSIDIARY" of any person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" shall mean any Subsidiary which is a party to
the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" shall have the meaning provided in section
6.1(c).
14
20
"SUBORDINATED INDEBTEDNESS" shall mean (i) the Convertible Subordinated
Debentures due 2004, and (ii) any other Indebtedness which has been subordinated
to the Obligations in such manner and to such extent as the Administrative Agent
(acting on instructions from the Required Lenders) may require.
"SWING LINE REVOLVING COMMITMENT" shall mean, with respect to each
Lender, the amount, if any, set forth opposite such Lender's name in Annex I as
its "Swing Line Revolving Commitment" as the same may be reduced from time to
time pursuant to section 4.2, 4.3 and/or 10 or adjusted from time to time as a
result of assignments to or from such Lender pursuant to section 12.4.
"SWING LINE REVOLVING FACILITY" shall mean the facility evidenced by
the Total Swing Line Revolving Commitment.
"SWING LINE REVOLVING FACILITY PERCENTAGE" shall mean at any time for
any Lender with a Swing Line Revolving Commitment, the percentage obtained by
dividing such Lender's Swing Line Revolving Commitment by the Total Swing Line
Revolving Commitment, PROVIDED, that if the Total Swing Line Revolving
Commitment has been terminated, the Swing Line Revolving Facility Percentage for
each Lender with a Swing Line Revolving Commitment shall be determined by
dividing such Lender's Swing Line Revolving Commitment immediately prior to such
termination by the Total Swing Line Revolving Commitment immediately prior to
such termination.
"SWING LINE REVOLVING LOAN" shall have the meaning provided in section
2.1(b).
"SWING LINE REVOLVING NOTE" shall have the meaning provided in section
2.6(a)(ii).
"TESTING PERIOD" shall mean for any determination a single period
consisting of the four consecutive fiscal quarters of the Borrower then last
ended (whether or not such quarters are all within the same fiscal year).
"TOTAL AMORTIZATION EXPENSE" shall mean, for any period, all
amortization expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"TOTAL ASSETS" shall mean at any time the total assets, net of
depreciation, reserves and other adjustments, which would appear on a
consolidated balance sheet, prepared in accordance with GAAP, of the Borrower
and its Subsidiaries at such time.
"TOTAL COMMITMENT" shall mean the sum of the Commitments of the
Lenders.
"TOTAL DEPRECIATION EXPENSE" shall mean, for any period, all
depreciation expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"TOTAL GENERAL REVOLVING COMMITMENT" shall mean the sum of the General
Revolving Commitments of the Lenders.
"TOTAL INCOME TAX EXPENSE" shall mean, for any period, all provisions
for taxes based on the net income of the Borrower or any of its Subsidiaries
(including, without limitation, any additions to such taxes, and any penalties
and interest with respect thereto), and all franchise taxes of the Borrower and
its Subsidiaries, all as determined for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"TOTAL INDEBTEDNESS" shall mean the sum (without duplication) of the
following, for the Borrower and/or any of its Subsidiaries, all as determined on
a consolidated basis of:
(i) all indebtedness for borrowed money,
15
21
(ii) all bonds, notes, debentures and similar debt securities,
(iii) the deferred purchase price of capital assets or
services which in accordance with GAAP would be shown on the liability
side of a consolidated balance sheet of the Borrower and its
Subsidiaries,
(iv) all Indebtedness of a second person secured by any Lien
on any property owned by such first person, whether or not such
Indebtedness has been assumed, up to the greater of (A) the portion of
such Indebtedness equivalent to the fair value of such property, and
(B) if such Indebtedness has been assumed by such first person, the
amount thereof so assumed,
(v) all Capitalized Lease Obligations,
(vi) the present value, determined on the basis of the
implicit interest rate, of all basic rental obligations under all
"synthetic" leases (i.e. leases accounted for by the lessee as
operating leases under which the lessee is the "owner" of the leased
property for Federal income tax purposes, and
(vii) the full outstanding balance of trade receivables sold
with full or limited recourse, other than solely for purposes of
collection of delinquent accounts, PROVIDED that if the structure of
any receivables sales program provides for "over-collateralization",
the outstanding balance of the trade receivables attributable to the
"over-collateralization" may be excluded,
PROVIDED that neither trade payables and accrued expenses, in each case arising
in the ordinary course of business, nor obligations in respect of insurance
policies or performance or surety bonds which themselves are not guarantees of
Indebtedness, shall be included.
"TOTAL INTEREST EXPENSE" shall mean, for any period, total interest
expense (including that which is capitalized and that which is attributable to
Capital Leases, in accordance with GAAP) of the Borrower and its Subsidiaries on
a consolidated basis with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
net costs under Hedge Agreements, but excluding, however, any amortization of
deferred financing costs, all as determined in accordance with GAAP.
"TOTAL NET INDEBTEDNESS" shall mean at any time (i) Total Indebtedness
at such time, LESS (ii) the excess at such time, if any, of the cash and Cash
Equivalents of the Borrower and its Subsidiaries on a consolidated basis, over
$5,000,000.
"TOTAL SENIOR INDEBTEDNESS" shall mean at any time (i) Total
Indebtedness at such time, LESS (ii) the then outstanding principal amount of
the Convertible Subordinated Debentures due 2004.
"TOTAL SWING LINE REVOLVING COMMITMENT" shall mean the sum of the Swing
Line Revolving Commitments of the Lenders.
"TYPE" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Prime Rate Loan, Eurodollar Loan or
Money Market Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if any,
by which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 87, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
16
22
"UNITED STATES" and "U.S." each means United States of America.
"UNPAID DRAWING" shall have the meaning provided in section 3.3(a).
"UNUTILIZED GENERAL REVOLVING COMMITMENT" for any Lender at any time
shall mean the excess of (i) such Lender's General Revolving Commitment at such
time over (ii) the sum of the principal amount of General Revolving Loans made
by such Lender and outstanding at such time and (y) such Lender's General
Revolving Facility Percentage of Letter of Credit Outstandings at such time.
"UNUTILIZED TOTAL GENERAL REVOLVING COMMITMENT" shall mean, at any
time, the excess of (i) the Total General Revolving Commitment at such time over
(ii) the sum of (x) the aggregate principal amount of all General Revolving
Loans then outstanding plus (y) the aggregate Letter of Credit Outstandings at
such time.
"VALUE" shall mean, with respect to a Sale and Lease-Back Transaction,
as of any particular time, the amount equal to the greater of (i) the net
proceeds of the sale or transfer of the property leased pursuant to such Sale
and Lease-Back Transaction or (ii) the fair value in the opinion of the
Borrower, acting in good faith, of such property at the time of entering into
such Sale and Lease-Back Transaction.
"WHOLLY-OWNED SUBSIDIARY" shall mean each Subsidiary of the Borrower at
least 95% of whose capital stock, equity interests and partnership interests,
other than director's qualifying shares or similar interests, are owned directly
or indirectly by the Borrower.
"WRITTEN", "WRITTEN" or "IN WRITING" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
1.2. COMPUTATION OF TIME PERIODS. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
1.3. ACCOUNTING TERMS. Except as otherwise specifically provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; PROVIDED that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Effective Date in GAAP or in the application thereof to such
provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such
purposes), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance with the requirements of this
Agreement.
1.4. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any person shall be construed to include such person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to sections, Annexes
and Exhibits shall be construed to refer to sections of, and Annexes and
Exhibits to, this Agreement, and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all real
property, tangible and
17
23
intangible assets and properties, including cash, securities, accounts and
contract rights, and interests in any of the foregoing.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. COMMITMENTS FOR LOANS. Subject to and upon the terms and
conditions herein set forth, each Lender severally agrees to make a loan or
loans (each a "LOAN" and, collectively, the "LOANS") to the Borrower, and the
Borrower shall be entitled to obtain Loans from the Lenders, which Loans shall
be drawn, to the extent such Lender has a Commitment under a Facility for the
Borrower, under the applicable Facility, as set forth below:
(a) GENERAL REVOLVING FACILITY. Loans to the Borrower under
the General Revolving Facility (each a "GENERAL REVOLVING LOAN" and,
collectively, the "GENERAL REVOLVING LOANS") (i) may be made at any
time and from time to time on and after the Closing Date and prior to
the Maturity Date; (ii) shall be made only in U.S. Dollars; (iii)
except as otherwise provided, may, at the option of the Borrower, be
incurred and maintained as, or converted into, General Revolving Loans
which are either Prime Rate Loans or Eurodollar Loans, PROVIDED that
all General Revolving Loans made as part of the same Borrowing shall,
unless otherwise specifically provided herein, consist of General
Revolving Loans of the same Type; (iv) may be repaid or prepaid and
reborrowed in accordance with the provisions hereof; (v) may only be
made if after giving effect thereto the aggregate outstanding General
Revolving Loans and Swing Line Revolving Loans do not exceed the
Available Commitment Amount as of the end of the fiscal quarter most
recently ended prior thereto for which financial statements have been
delivered pursuant to section 8.1(a) or (b) hereof; (vi) may only be
made if after giving effect thereto the Unutilized Total General
Revolving Commitment exceeds the outstanding Swing Line Revolving
Loans; and (vii) shall not exceed for any Lender at any time
outstanding that aggregate principal amount which, when added to the
product at such time of (A) such Lender's General Revolving Facility
Percentage, TIMES (B) the aggregate Letter of Credit Outstandings,
equals the General Revolving Commitment of such Lender at such time.
(b) SWING LINE REVOLVING FACILITY. Loans to the Borrower under
the Swing Line Revolving Facility (each a "SWING LINE REVOLVING LOAN"
and, collectively, the "SWING LINE REVOLVING LOANS") (i) may be made at
any time and from time to time on and after the Closing Date and prior
to the Maturity Date; (ii) shall be made only in U.S. Dollars; (iii)
shall have a maturity of 7 days or less; (iv) except as otherwise
provided, may, at the option of the Borrower, be incurred as Swing Line
Revolving Loans which are either Prime Rate Loans or Money Market Rate
Loans, PROVIDED that all Swing Line Revolving Loans made as part of the
same Borrowing shall, unless otherwise specifically provided herein,
consist of Swing Line Revolving Loans of the same Type; (v) may be
repaid or prepaid and reborrowed in accordance with the provisions
hereof; (vi) may only be made if after giving effect thereto the
aggregate outstanding General Revolving Loans and Swing Line Revolving
Loans do not exceed the Available Commitment Amount as of the end of
the fiscal quarter most recently ended prior thereto for which
financial statements have been delivered pursuant to section 8.1(a) or
(b) hereof; and (vii) shall not exceed for any Lender at any time
outstanding such Lender's Swing Line Revolving Commitment at such time.
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS. (a) The
aggregate principal amount of each Borrowing by the Borrower shall not be less
than the Minimum Borrowing Amount. More than one Borrowing may be incurred by
the Borrower on any day, PROVIDED that (i) if there are two or more Borrowings
on a single day under the same Facility which consist of Eurodollar Loans, each
such Borrowing shall have a different initial Interest Period, and at no time
shall there be more than 15 Borrowings under the General Revolving Facility
which are Eurodollar Loans outstanding hereunder.
(b) All Borrowings under a Facility shall be made by the Lenders PRO
RATA on the basis of their respective Commitments under such Facility. It is
understood that no Lender shall be responsible for any default
18
24
by any other Lender in its obligation to make Loans hereunder and that each
Lender shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fulfill its Commitment
hereunder.
2.3. NOTICE OF BORROWING. (a) Whenever the Borrower desires to incur
Loans, it shall give the Administrative Agent at its Notice Office,
(A) in the case of any Borrowing under the General Revolving
Facility of Eurodollar Loans to be made hereunder, prior to 11:00 A.M.
(local time at its Notice Office), at least three Business Days' prior
written or telephonic notice thereof (in the case of telephonic notice,
promptly confirmed in writing if so requested by the Administrative
Agent),
(B) in the case of any Borrowing under the General Revolving
Facility of Prime Rate Loans to be made hereunder, prior to 11:00 A.M.
(local time at its Notice Office) on the proposed date thereof written
or telephonic notice thereof (in the case of telephonic notice,
promptly confirmed in writing if so requested by the Administrative
Agent), or
(C) in the case of any Borrowing under the Swing Line
Revolving Facility of any Loans to be made hereunder, prior to 2:00
P.M. (local time at its Notice Office) on the proposed date thereof
(which shall in the case of any Money Market Rate Loans be within such
period as the Administrative Agent shall have specified for the Quoted
Rate for such Money Market Rate Loans) written or telephonic notice
thereof (in the case of telephonic notice, promptly confirmed in
writing if so requested by the Administrative Agent).
Each such notice (each such notice, a "NOTICE OF BORROWING") shall (if requested
by the Administrative Agent to be confirmed in writing), be substantially in the
form of Exhibit B-1, and in any event shall be irrevocable and shall specify:
(i) the Facility under which the Borrowing is to be incurred; (ii) the aggregate
principal amount of the Loans to be made pursuant to such Borrowing; (iii) the
date of the Borrowing (which shall be a Business Day); (iv) whether the
Borrowing shall consist of Prime Rate Loans, Eurodollar Loans or Money Market
Rate Loans; (v) if the Borrowing consists of Swing Line Revolving Loans, the
maturity date thereof (which shall not be more than 7 days), and if such Swing
Line Revolving Loans are Money Market Rate Loans, the Quoted Rate therefor; and
(vi) if the requested Borrowing consists of Eurodollar Loans, the Interest
Period to be initially applicable thereto. If the Borrower fails to specify in a
Notice of Borrowing the maturity date of any Swing Line Revolving Loans, such
maturity date shall be deemed to be 7 days. The Administrative Agent shall
promptly give each Lender which has a Commitment under any applicable Facility
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing under the applicable Facility, of such Lender's proportionate
share thereof and of the other matters covered by the Notice of Borrowing
relating thereto.
(b) Whenever the Borrower proposes to submit a Notice of Borrowing with
respect to Swing Line Revolving Loans which will be Money Market Rate Loans, it
will prior to submitting such Notice of Borrowing notify the Administrative
Agent of its intention and request the Administrative Agent to quote a fixed or
floating interest rate (the "QUOTED RATE") to be applicable thereto prior to the
proposed maturity thereof. The Administrative Agent will immediately so notify
the Lenders with Commitments under the Swing Line Revolving Facility, and if all
of such Lenders are agreeable to a particular interest rate for the proposed
maturity of such Money Market Rate Loans if such Loans are made on or prior to a
specified date, the Administrative Agent shall quote such interest rate to the
Borrower as the Quoted Rate applicable to such proposed Money Market Rate Loans
if made on or before such specified date for a maturity as so proposed by the
Borrower. The Lenders with Commitments under the Swing Line Revolving Facility
contemplate that any Quoted Rate will be a rate of interest which reflects a
margin corresponding to (or greater than) the Applicable Eurodollar Margin in
effect at the time of quotation of any Quoted Rate, over the then prevailing
Federal Funds Effective Rate, or a commercial paper, call money, overnite
repurchase or other commonly quoted interest rate, in each case as selected by
such Lenders. Nothing herein shall obligate any Lender to approve or agree to a
Quoted Rate.
19
25
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower entitled to give telephonic notices under this Agreement on behalf of
the Borrower. In each such case, the Administrative Agent's record of the terms
of such telephonic notice shall be conclusive absent manifest error.
2.4. DISBURSEMENT OF FUNDS. (a) No later than (x) 2:00 P.M. (local time
at the Payment Office) on the date specified in each Notice of Borrowing
relating to General Revolving Loans, or (y) 2:30 P.M. (local time at the Payment
Office) on the date specified in each Notice of Borrowing relating to Swing Line
Revolving Loans, each Lender with a Commitment under the Facility under which
any Borrowing pursuant to such Notice of Borrowing is to be made will make
available its PRO RATA share, if any, of each Borrowing under such Facility
requested to be made on such date in the manner provided below. All amounts
shall be made available to the Administrative Agent in U.S. dollars and
immediately available funds at the Payment Office and the Administrative Agent
promptly will make available to the Borrower by depositing to its account at the
Payment Office the aggregate of the amounts so made available in the type of
funds received. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made available same to the Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from such Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (x) if paid by such Lender, the overnight Federal Funds
Effective Rate or (y) if paid by the Borrower, the then applicable rate of
interest, calculated in accordance with section 2.8, for the respective Loans
(but without any requirement to pay any amounts in respect thereof pursuant to
section 2.11).
(b) Nothing herein and no subsequent termination of the Commitments
pursuant to section 4.2 or 4.3 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder and in existence from time to
time or to prejudice any rights which the Borrower may have against any Lender
as a result of any default by such Lender hereunder.
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS. (a)
If any Event of Default exists, any Lender which has Swing Line Revolving Loans
owing to it (a "SWING LINE LENDER") may, in its sole and absolute discretion,
direct that the Swing Line Revolving Loans owing to it be refunded by delivering
a notice to such effect to the Administrative Agent, specifying the aggregate
principal amount thereof (a "NOTICE OF SWING LINE REFUNDING"). Promptly upon
receipt of a Notice of Swing Line Refunding, the Administrative Agent shall give
notice of the contents thereof to the Lenders with General Revolving Commitments
and, unless an Event of Default specified in section 10.1(h) in respect of the
Borrower has occurred, the Borrower. Each such Notice of Swing Line Refunding
shall be deemed to constitute delivery by the Borrower of a Notice of Borrowing
requesting General Revolving Loans consisting of Prime Rate Loans in the amount
of the Swing Line Revolving Loans to which it relates. Each Lender with a
General Revolving Commitment (including the Swing Line Lender giving the Notice
of Swing Line Refunding) hereby unconditionally agrees (notwithstanding that any
of the conditions specified in section 6.2 hereof or elsewhere in this Agreement
shall not have been satisfied, but subject to the provisions of paragraph (b)
below) to make a General Revolving Loan to the Borrower in an amount equal to
such Lender's General Revolving Facility Percentage of the aggregate amount of
the Swing Line Revolving Loans to which such Notice of Swing Line Refunding
relates. Each such Lender shall make the
20
26
amount of such General Revolving Loan available to the Administrative Agent in
immediately available funds at the Payment Office not later than 2:00 P.M.
(local time at the Payment Office), if such notice is received by such Lender
prior to 10:30 A.M. (local time at its Domestic Lending Office), or not later
than 2:00 P.M. (local time at the Payment Office) on the next Business Day, if
such notice is received by such Lender after such time. The proceeds of such
General Revolving Loans shall be made immediately available to the Swing Line
Lender giving such Notice of Swing Line Refunding and applied by it to repay the
principal amount of the Swing Line Revolving Loans to which such Notice of Swing
Line Refunding related. The Borrower irrevocably and unconditionally agrees
that, notwithstanding anything to the contrary contained in this Agreement,
General Revolving Loans made as herein provided in response to a Notice of Swing
Line Refunding shall constitute General Revolving Loans hereunder consisting of
Prime Rate Loans.
(b) If prior to the time a General Revolving Loan would otherwise have
been made as provided above as a consequence of a Notice of Swing Line
Refunding, any of the events specified in section 10.1(h) shall have occurred in
respect of the Borrower or one or more of the Lenders with General Revolving
Commitments shall determine that it is legally prohibited from making a General
Revolving Loan under such circumstances, each Lender (other than the Swing Line
Lender giving the Notice of Swing Line Refunding), or each Lender (other than
such Swing Line Lender) so prohibited, as the case may be, shall, on the date
such General Revolving Loan would have been made by it (the "PURCHASE DATE"),
purchase an undivided participating interest in the outstanding Swing Line
Revolving Loans to which such Notice of Swing Line Refunding related, in an
amount (the "SWING LINE PARTICIPATION AMOUNT") equal to such Lender's General
Revolving Facility Percentage of such Swing Line Revolving Loans. On the
Purchase Date, each such Lender or each such Lender so prohibited, as the case
may be, shall pay to the Swing Line Lender, in immediately available funds, such
Lender's Swing Line Participation Amount, and promptly upon receipt thereof the
Swing Line Lender shall, if requested by such other Lender, deliver to such
Lender a participation certificate, dated the date of the Swing Line Lender's
receipt of the funds from, and evidencing such Lender's participating interest
in such Swing Line Revolving Loans and its Swing Line Participation Amount in
respect thereof. If any amount required to be paid by a Lender to the Swing Line
Lender pursuant to the above provisions in respect of any Swing Line
Participation Amount is not paid on the date such payment is due, such Lender
shall pay to the Swing Line Lender on demand interest on the amount not so paid
at the overnight Federal Funds Effective Rate from the due date until such
amount is paid in full.
(c) Whenever, at any time after the Swing Line Lender has received from
any other Lender such Lender's Swing Line Participation Amount, the Swing Line
Lender receives any payment from or on behalf of the Borrower on account of the
related Swing Line Revolving Loans, the Swing Line Lender will promptly
distribute to such Lender its General Revolving Facility Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's participating interest was outstanding and funded);
PROVIDED, HOWEVER, that in the event such payment received by the Swing Line
Lender is required to be returned, such Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(d) Each Lender's obligation to make General Revolving Loans and/or to
purchase participations in connection with a Notice of Swing Line Refunding
shall be absolute and unconditional, shall be solely for the benefit of the
Swing Line Lender which gives such Notice of Swing Line Refunding, and shall not
be affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against any other Lender, any Credit Party, or any other person, or any Credit
Party may have against any Lender or other person, as the case may be, for any
reason whatsoever; (ii) the occurrence or continuance of a Default or Event of
Default; (iii) any event or circumstance involving a Material Adverse Effect
upon the Borrower, (iv) any breach of any Credit Document by any party thereto;
or (v) any other circumstance, happening or event, whether or not similar to any
of the foregoing.
2.6. NOTES. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made to it by each Lender shall be evidenced (i) if
General Revolving Loans, by a promissory note substantially in the form of
Exhibit A-1 with blanks appropriately completed in conformity herewith (each a
"GENERAL REVOLVING NOTE" and, collectively, the "GENERAL REVOLVING NOTES"), and
(ii) if Swing Line Revolving Loans, by a promissory note
21
27
substantially in the form of Exhibit A-2 with blanks appropriately completed in
conformity herewith (each a "SWING LINE REVOLVING NOTE" and, collectively, the
"SWING LINE REVOLVING NOTES").
(b) The General Revolving Note issued to a Lender with a General
Revolving Commitment shall: (i) be executed by the Borrower; (ii) be payable to
the order of such Lender and be dated on or prior to the date the first Loan
evidenced thereby is made; (iii) be in a stated principal amount equal to the
General Revolving Commitment of such Lender and be payable in the principal
amount of General Revolving Loans evidenced thereby; (iv) mature on the Maturity
Date; (v) bear interest as provided in section 2.8 in respect of the Prime Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby; (vi) be
subject to mandatory prepayment as provided in section 5.2: and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Swing Line Revolving Note issued to a Lender with a Swing Line
Revolving Commitment shall: (i) be executed by the Borrower; (ii) be payable to
the order of such Lender and be dated on or prior to the date the first Loan
evidenced thereby is made; (iii) be in a stated principal amount equal to the
Swing Line Revolving Commitment of such Lender and be payable in the principal
amount of Swing Line Revolving Loans evidenced thereby; (iv) mature as to any
Swing Line Revolving Loan evidenced thereby on the maturity date, not later than
the 7th day following the date such Swing Line Revolving Loan was made,
specified in the applicable Notice of Borrowing; (v) bear interest as provided
in section 2.8 in respect of the Prime Rate Loans or Money Market Rate Loans, as
the case may be, evidenced thereby; (vi) be subject to mandatory prepayment as
provided in section 5.2; and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any Note, endorse on the reverse side thereof or the grid attached
thereto the outstanding principal amount of Loans evidenced thereby. Failure to
make any such notation or any error in any such notation shall not affect the
Borrower's obligations in respect of such Loans.
2.7. CONVERSIONS OF GENERAL REVOLVING LOANS. The Borrower shall have
the option to convert on any Business Day all or a portion at least equal to the
applicable Minimum Borrowing Amount of the outstanding principal amount of the
outstanding Loans comprising a Borrowing under the General Revolving Facility
into a Borrowing or Borrowings under the same Facility of the other Type of Loan
which can be made pursuant to such Facility, PROVIDED that: (i) no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the outstanding
principal amount of the Eurodollar Loans made pursuant to such Borrowing to less
than the Minimum Borrowing Amount applicable thereto; (ii) any conversion of
Eurodollar Loans into Prime Rate Loans shall be made on, and only on, the last
day of an Interest Period for such Eurodollar Loans; (iii) Prime Rate Loans may
only be converted into Eurodollar Loans if no Default under section 10.1(a) or
Event of Default is in existence on the date of the conversion unless the
Required Lenders otherwise agree; and (iv) Borrowings of Eurodollar Loans
resulting from this section 2.7 shall conform to the requirements of section
2.2. Each such conversion shall be effected by the Borrower giving the
Administrative Agent at its Notice Office, prior to 11:00 A.M. (local time at
such Notice Office), at least three Business Days' (or prior to 11:00 A.M.
(local time at such Notice Office) same Business Day's, in the case of a
conversion into Prime Rate Loans) prior written notice (or telephonic notice
promptly confirmed in writing if so requested by the Administrative Agent) (each
a "NOTICE OF CONVERSION"), substantially in the form of Exhibit B-2, specifying
the Loans to be so converted, the Type of Loans to be converted into and, if to
be converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Lender
prompt notice of any such proposed conversion affecting any of its Loans. For
the avoidance of doubt, the prepayment or repayment of any Loans out of the
proceeds of other Loans by the Borrower is not considered a conversion of Loans
into other Loans.
2.8. INTEREST. (a) The unpaid principal amount of each General
Revolving Loan which is (i) a Prime Rate Loan shall bear interest from the date
of the Borrowing thereof until maturity (whether by acceleration or otherwise)
at a fluctuating rate per annum which shall at all times be equal to the Prime
Rate in effect from time to time; and (ii) a Eurodollar Loan shall bear interest
from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum which shall at all times be the
22
28
Applicable Eurodollar Margin (as defined below) for such General Revolving Loan
PLUS the relevant Eurodollar Rate.
(b) The unpaid principal amount of each Swing Line Revolving Loan which
is (i) a Prime Rate Loan shall bear interest from the date of the Borrowing
thereof until maturity (whether by acceleration or otherwise) at a fluctuating
rate per annum which shall at all times be equal to the Prime Rate in effect
from time to time; and (ii) a Money Market Rate Loan shall bear interest from
the date of the Borrowing thereof until maturity (whether by acceleration or
otherwise) at a rate per annum which shall be equal to the Quoted Rate therefor.
(c) Notwithstanding the above provisions, if a Default under section
10.1(a) is in existence, or an Event of Default is in existence and the
Administrative Agent or any Lender shall have notified the Borrower thereof in
writing, all outstanding amounts of principal and, to the extent permitted by
law, all overdue interest, in respect of each Loan shall bear interest, payable
on demand, at a rate per annum equal to 2% per annum above the interest rate
otherwise applicable thereto. If any amount (other than the principal of and
interest on the Loans) payable by the Borrower under the Credit Documents is not
paid when due, such amount shall bear interest, payable on demand, at a rate per
annum equal to the Prime Rate in effect from time to time PLUS 2% per annum.
(d) Interest shall accrue from and including the date of any Borrowing
to but excluding the date of any prepayment or repayment thereof and shall be
payable:
(i) in the case of any Swing Line Revolving Loan, (A) in
advance on a nonrefundable basis, if so agreed by the Borrower, or (B)
in all other cases, on any prepayment (on the amount prepaid), at
maturity (whether by acceleration or otherwise) and, after such
maturity, on demand; and
(ii) in the case of any General Revolving Loan, (A) which is a
Prime Rate Loan, quarterly in arrears on the last Business Day of
March, June, September and December, (B) which is a Eurodollar Loan, on
the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on the dates
which are successively three months after the commencement of such
Interest Period, and (C) in respect of each Loan, on any prepayment or
conversion (on the amount prepaid or converted), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance
with section 12.7(b).
(f) Each Reference Bank agrees to furnish the Administrative Agent
timely information for the purpose of determining the Eurodollar Rate for any
Borrowing consisting of Eurodollar Loans. If any one or more of the Reference
Banks shall not timely furnish such information, the Administrative Agent shall
determine the Eurodollar Rate on the basis of timely information furnished by
the remaining Reference Banks. The Administrative Agent upon determining the
interest rate for any Borrowing shall promptly notify the Borrower and the
Lenders thereof.
(g) As used herein, the term "APPLICABLE EURODOLLAR MARGIN", as applied
to any Loan which is a Eurodollar Loan, means 32.5 basis points per annum;
PROVIDED, that subsequent to the fiscal quarter of the Borrower ended nearest to
June 30, 1997, the Applicable Eurodollar Margin will be determined by reference
to the rate per annum indicated in the Pricing Grid Table which appears below,
based on the ratio referred to in section 9.6 and identified in such Table.
Changes in the Applicable Eurodollar Margin based upon changes in such
ratio shall become effective on the date of the receipt by the Administrative
Agent pursuant to section 8.1(a) or (b) of the financial statements of the
Borrower, accompanied by the certificate referred to in section 8.1(c),
demonstrating the computation of such ratio, based upon the ratio in effect at
the end of the applicable period covered (in whole or in part) by such financial
statements; PROVIDED that:
23
29
(i) If any financial statements referred to in section 8.1(a)
or (b), or the related certificate referred to in section 8.1(c), are
not timely delivered, the Administrative Agent may determine the
Applicable Eurodollar Margin based upon a good faith estimate by the
Borrower of such ratio as in effect at the end of the applicable period
to be covered (in whole or in part) by such financial statements,
PROVIDED that if upon delivery of such delinquent financial statements
and related certificate, such financial statements indicate that such
good faith estimate was incorrect and, as a result thereof, the
Applicable Eurodollar Margin for any Loans was too low at such
determination, the Applicable Eurodollar Margin for such Loans shall be
increased, as appropriate, with retroactive effect to the date of the
change made on the basis of such determination, and the Borrower will
immediately pay to the Administrative Agent, for the account of the
Lenders having Commitments in respect of the Facility under which such
Loans were incurred all additional interest due by reason of such
increased Applicable Eurodollar Margin.
(ii) If subsequent to any such determination of the Applicable
Eurodollar Margin and prior to the delivery of any subsequent financial
statements, the Administrative Agent believes that there has been an
increase in the amount of Total Net Indebtedness such that if the
current amount of Total Net Indebtedness had been used to make such
determination, instead of the amount of Total Net Indebtedness as of
the date of the financial statements used in making such determination,
the Applicable Eurodollar Margin would have been higher than as so
determined, the Administrative Agent may require the Borrower to
confirm to it the current amount of Total Net Indebtedness and the
Administrative Agent may re-determine the Applicable Eurodollar Margin
using such current amount, and if the Applicable Eurodollar Margin as
so re-determined is higher, the Applicable Eurodollar Margin for
Eurodollar Loans shall be increased, as appropriate, with retroactive
effect to the date of the change made on the basis of the earlier
determination, as specified in a notice from the Administrative Agent
to the Borrower and the affected Lenders, and the Borrower will
immediately pay to the Administrative Agent, for the account of the
Lenders having Commitments in respect of the Facility under which such
Loans were incurred all additional interest due by reason of such
increased Applicable Eurodollar Margin. The Administrative Agent (x)
may make any such re-determination on not more than one occasion during
any particular period between the delivery dates of financial
statements for successive periods hereunder, and (y) may only make any
such re-determination as a result of an increase in the amount of Total
Net Indebtedness which is attributable (in whole or in significant
part) to the application by the Borrower of the proceeds of the
offering of Convertible Subordinated Debentures due 2004 (or the
identifiable cash and Cash Equivalents in which such proceeds have been
temporarily invested) to a Permitted Acquisition, or a loan, advance or
investment permitted hereby, or Consolidated Capital Expenditure, or
other form of corporate expenditure.
(iii) If subsequent to any such determination of the
Applicable Eurodollar Margin and prior to the delivery of any
subsequent financial statements, the Borrower recognizes that an event
(such as, without limitation, an offering of its common stock) has
occurred as a result of which there has been a decrease in the amount
of Total Net Indebtedness such that if the current amount of Total Net
Indebtedness had been used to make such determination, instead of the
amount of Total Net Indebtedness as of the date of the financial
statements used in making such determination, the Applicable Eurodollar
Margin would have been lower than as so determined, the the Borrower
may confirm to the Administrative Agent the current amount of Total Net
Indebtedness and the Administrative Agent will promptly re-determine
the Applicable Eurodollar Margin using such current amount, and if the
Applicable Eurodollar Margin as so re-determined is lower, the
Applicable Eurodollar Margin for Eurodollar Loans shall be decreased,
as appropriate, with prospective effect, as specified in a notice
promptly given by the Administrative Agent to the Borrower and the
affected Lenders. The Borrower may not require the Administrative Agent
to make any such re-determination on more than one occasion during the
entire time this Agreement is effective.
Any changes in the Applicable Eurodollar Margin shall be determined by the
Administrative Agent and the Administrative Agent will promptly provide notice
of such determinations to the Borrower and the Lenders. Any
24
30
such determination by the Administrative Agent pursuant to this section 2.7(g)
shall be conclusive and binding absent manifest error.
PRICING GRID TABLE
(EXPRESSED IN BASIS POINTS)
====================================================================================================
Applicable Applicable
TOTAL NET INDEBTEDNESS/EBITDA RATIO Eurodollar Facility
Margin Fee Rate
- ----------------------------------------------------------------------------------------------------
greater than or equal to 4.25 to 1.00 150.00 50.00
- ----------------------------------------------------------------------------------------------------
greater than or equal 4.00 to 1.00 and less than 4.25 to 1.00 140.00 40.00
- ----------------------------------------------------------------------------------------------------
greater than or equal 3.50 to 1.00 and less than 4.00 to 1.00 100.00 30.00
- ----------------------------------------------------------------------------------------------------
greater than or equal 3.00 to 1.00 and less than 3.50 to 1.00 75.00 25.00
- ----------------------------------------------------------------------------------------------------
greater than or equal 2.50 to 1.00 and less than 3.00 to 1.00 62.50 15.00
- ----------------------------------------------------------------------------------------------------
greater than or equal 2.00 to 1.00 and less than 2.50 to 1.00 57.50 12.50
- ----------------------------------------------------------------------------------------------------
greater than or equal 1.50 to 1.00 and less than 2.00 to 1.00 42.50 12.50
- ----------------------------------------------------------------------------------------------------
less than 1.50 to 1.00 32.50 12.50
====================================================================================================
2.9. INTEREST PERIODS. (a) At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 11:00 A.M. (local time at the applicable
Notice Office) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of Eurodollar Loans, it shall have the right to
elect by giving the Administrative Agent written or telephonic notice (in the
case of telephonic notice, promptly confirmed in writing if so requested by the
Administrative Agent) of the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower, be a one, two, three or
six month period. Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Prime Rate
Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
25
31
(iv) no Interest Period for any Loan may be selected which
would end after the Maturity Date; and
(v) no Interest Period may be elected at any time when a
Default under section 10.1(a) or an Event of Default is then in
existence unless the Required Lenders otherwise agree.
(b) If upon the expiration of any Interest Period the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing to Prime Rate Loans
effective as of the expiration date of such current Interest Period.
2.10. INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined on a reasonable
basis (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the
Effective Date affecting the interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the applicable interest rate
on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder in an
amount which such Lender deems material with respect to any Eurodollar
Loans (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in
the rate of taxes or similar charges) because of (x) any change since
the Effective Date in any applicable law, governmental rule,
regulation, guideline, order or request (whether or not having the
force of law), or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, guideline, order or request (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves includable in the Eurodollar Rate pursuant
to the definition thereof) and/or (y) other circumstances adversely
affecting the interbank Eurodollar market or the position of such
Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Lender in
good faith with any change since the Effective Date in any law,
governmental rule, regulation, guideline or order, or the
interpretation or application thereof, or would conflict with any
thereof not having the force of law but with which such Lender
customarily complies or has become impracticable as a result of a
contingency occurring after the Effective Date which materially
adversely affects the interbank Eurodollar market;
THEN, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on or promptly following such date or time
and (y) within 10 Business Days of the date on which such event no longer exists
give notice (by telephone confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other applicable Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans which have not
yet been incurred or converted shall be deemed rescinded by the Borrower or, in
the case of a Notice of Borrowing, shall, at the option of the Borrower, be
deemed converted into a Notice of Borrowing for Prime Rate Loans to be made on
the date of Borrowing contained in such Notice of Borrowing, (y) in the case of
clause (ii) above, the Borrower shall pay to such Lender, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender shall
determine) as shall be required to compensate such Lender, for such increased
costs or reductions in amounts receivable hereunder
26
32
(a written notice as to the additional amounts owed to such Lender, showing the
basis for the calculation thereof, which basis must be reasonable, submitted to
the Borrower by such Lender shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in section
2.10(b) as promptly as possible and, in any event, within the time period
required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in section 2.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to section 2.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the Borrower was
notified by a Lender pursuant to section 2.10(a)(ii) or (iii), cancel said
Borrowing, convert the related Notice of Borrowing into one requesting a
Borrowing of Prime Rate Loans or require the affected Lender to make its
requested Loan as a Prime Rate Loan, or (ii) if the affected Eurodollar Loan is
then outstanding, upon at least one Business Day's notice to the Administrative
Agent, require the affected Lender to convert each such Eurodollar Loan into a
Prime Rate Loan, PROVIDED that if more than one Lender is affected at any time,
then all affected Lenders must be treated the same pursuant to this section
2.10(b).
(c) If any Lender shall have determined that after the Effective Date,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged by law with the interpretation or administration thereof, or
compliance by such Lender or its parent corporation with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank, or comparable agency, in each case made
subsequent to the Effective Date, has or would have the effect of reducing by an
amount reasonably deemed by such Lender to be material the rate of return on
such Lender's or its parent corporation's capital or assets as a consequence of
such Lender's commitments or obligations hereunder to a level below that which
such Lender or its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
its parent corporation's policies with respect to capital adequacy), then from
time to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent corporation for
such reduction. Each Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this section 2.10(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth, in
reasonable detail, the basis of the calculation of such additional amounts,
which basis must be reasonable, although the failure to give any such notice
shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this section 2.10(c) upon the subsequent receipt
of such notice.
(d) Notwithstanding anything in this Agreement to the contrary, (i) no
Lender shall be entitled to compensation or payment or reimbursement of other
amounts under section 2.10 or 3.5 for any amounts incurred or accruing more than
90 days prior to the giving of notice to the Borrower of additional costs or
other amounts of the nature described in such sections, and (ii) no Lender shall
demand compensation for any reduction referred to in section 2.10(c) or payment
or reimbursement of other amounts under section 3.5 if it shall not at the time
be the general policy or practice of such Lender to demand such compensation,
payment or reimbursement in similar circumstances under comparable provisions of
other credit agreements.
2.11. COMPENSATION. The Borrower shall compensate each applicable
Lender, upon its written request (which request shall set forth the detailed
basis for requesting and the method of calculating such compensation), for all
reasonable losses, expenses and liabilities (including, without limitation, any
loss, expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Lender to fund its Eurodollar Loans
or Money Market Rate Loans) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing of
Eurodollar Loans or Money Market Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to section 2.10(a)); (ii)
if any repayment, prepayment or conversion of any of its Eurodollar Loans or
Money Market Rate Loans
27
33
occurs on a date which is not the last day of an Interest Period applicable
thereto (in the case of Eurodollar Loans) or the maturity date thereof (in the
case of any Money Market Rate Loans), as the case may be; (iii) if any
prepayment of any of its Eurodollar Loans or Money Market Rate Loans, as the
case may be, is not made on any date specified in a notice of prepayment given
by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans or Money Market Rate Loans when required
by the terms of this Agreement or (y) an election made pursuant to section
2.10(b).
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS. (a) Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
section 2.10(a)(ii) or (iii), 2.10(c) or 3.5 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another Applicable Lending
Office for any Loans or Commitment affected by such event, PROVIDED that such
designation is made on such terms that such Lender and its Applicable Lending
Office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
section.
(b) If any Lender requests any compensation, reimbursement or other
payment under section 2.10(a)(ii) or (iii), 2.10(c) or 3.5 with respect to such
Lender, or if any Lender is a Defaulting Lender, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with the restrictions contained in section 12.4(b)), all its
interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); PROVIDED that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts), and (iii) in the case of any
such assignment resulting from a claim for compensation, reimbursement or other
payments required to be made under section 2.10(a)(ii) or (iii), 2.10(c) or 3.5
with respect to such Lender, such assignment will result in a reduction in such
compensation, reimbursement or payments. A Lender shall not be required to make
any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
(c) Nothing in this section 2.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in section 2.10
or 3.5.
SECTION 3. LETTERS OF CREDIT.
3.1. LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Closing Date and prior to the
date that is 15 Business Days prior to the Maturity Date to issue, for the
account of the Borrower or any of its Subsidiaries and in support of (i) trade
obligations of the Borrower and its Subsidiaries incurred in the ordinary course
of business, and/or (ii) worker compensation, liability insurance, releases of
contract retention obligations, contract performance guarantee requirements and
other bonding obligations of the Borrower or any such Subsidiary incurred in the
ordinary course of its business, and such other standby obligations of the
Borrower and its Subsidiaries that are acceptable to the Letter of Credit
Issuer, and subject to and upon the terms and conditions herein set forth, such
Letter of Credit Issuer agrees to issue from time to time, irrevocable
documentary or standby letters of credit denominated in Dollars in such form as
may be approved by such Letter of Credit Issuer and the Administrative Agent
(each such letter of credit (and each Existing Letter of Credit described in
section 3.1(d)), a "LETTER OF CREDIT" and collectively, the "LETTERS OF
CREDIT").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed either (x) $15,000,000 or (y) when added
to the aggregate principal amount of all General Revolving Loans then
outstanding, plus the portion
28
34
of the Total General Revolving Commitment reserved for possible refunding of
outstanding Swing Line Revolving Loans, an amount equal to the Total General
Revolving Commitment at such time; (ii) no individual Letter of Credit (other
than any Existing Letter of Credit) shall be issued which has an initial Stated
Amount less than $100,000 unless such lesser Stated Amount is acceptable to the
Letter of Credit Issuer; and (iii) each Letter of Credit shall have an expiry
date (including any renewal periods) occurring not later than the earlier of (A)
two years from the date of issuance thereof, unless a longer period is approved
by the relevant Letter of Credit Issuer and Lenders (other than any Defaulting
Lender) holding a majority of the Total General Revolving Commitment, and (B) 15
Business Days prior to the Maturity Date, in each case on terms acceptable to
the Administrative Agent and the relevant Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless either (i) such Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender's or Lenders' General Revolving Facility Percentage of the
Letter of Credit Outstandings; or (ii) the issuance of such Letter of Credit,
taking into account the potential failure of the Defaulting Lender or Lenders to
risk participate therein, will not cause the Letter of Credit Issuer to incur
aggregate credit exposure hereunder with respect to General Revolving Loans and
Letter of Credit Outstandings in excess of its General Revolving Commitment, and
the Borrower has undertaken, for the benefit of such Letter of Credit Issuer,
pursuant to an instrument satisfactory in form and substance to such Letter of
Credit Issuer, not to thereafter incur Loans or Letter of Credit Outstandings
hereunder which would cause the Letter of Credit Issuer to incur aggregate
credit exposure hereunder with respect to Loans and Letter of Credit
Outstandings in excess of its Commitment.
(d) Annex VI hereto contains a description of all letters of credit
outstanding on, and to continue in effect after, the Closing Date. Each such
letter of credit issued by a bank that is or becomes a Lender under this
Agreement on the Effective Date (each, an "EXISTING LETTER OF CREDIT") shall
constitute a "Letter of Credit" for all purposes of this Agreement, issued, for
purposes of section 3.4(a), on the Closing Date, and the Borrower, the
Administrative Agent and the applicable Lenders hereby agree that, from and
after such date, the terms of this Agreement shall apply to such Letters of
Credit, superseding any other agreement theretofore applicable to them to the
extent inconsistent with the terms hereof.
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and the Letter of Credit Issuer written or telephonic
notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) which, if in the form of written notice
shall be substantially in the form of Exhibit B-3, or transmit by electronic
communication (if arrangements for doing so have been approved by the Letter of
Credit Issuer), prior to 11:00 A.M. (local time at its Notice Office) at least
three Business Days (or such shorter period as may be acceptable to the relevant
Letter of Credit Issuer) prior to the proposed date of issuance (which shall be
a Business Day) (each a "LETTER OF CREDIT REQUEST"), which Letter of Credit
Request shall include such supporting documents that such Letter of Credit
Issuer customarily requires in connection therewith (including, in the case of a
Letter of Credit for an account party other than the Borrower, an application
for, and if applicable a reimbursement agreement with respect to, such Letter of
Credit). Any such documents executed in connection with the issuance of a Letter
of Credit, including the Letter of Credit itself, are herein referred to as
"LETTER OF CREDIT DOCUMENTS". In the event of any inconsistency between any of
the terms or provisions of any Letter of Credit Document and the terms and
provisions of this Agreement respecting Letters of Credit, the terms and
provisions of this Agreement shall control. The Administrative Agent shall
promptly notify each Lender of each Letter of Credit Request.
(b) Each Letter of Credit Issuer shall, on the date of each issuance of
a Letter of Credit by it, give the Administrative Agent, each applicable Lender
and the Borrower written notice of the issuance of such Letter of Credit,
accompanied by a copy to the Administrative Agent of the Letter of Credit or
Letters of Credit issued by it. Each Letter of Credit Issuer shall provide to
the Administrative Agent a quarterly (or monthly if requested by any applicable
Lender) summary describing each Letter of Credit issued by such Letter of Credit
Issuer and
29
35
then outstanding and an identification for the relevant period of the daily
aggregate Letter of Credit Outstandings represented by Letters of Credit issued
by such Letter of Credit Issuer.
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse (or cause any Subsidiary for whose account a Letter
of Credit was issued to reimburse) each Letter of Credit Issuer, by making
payment directly to such Letter of Credit Issuer in immediately available funds
at the payment office of such Letter of Credit Issuer, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "UNPAID DRAWING")
immediately after, and in any event on the date on which, such Letter of Credit
Issuer notifies the Borrower (or any such Subsidiary for whose account such
Letter of Credit was issued) of such payment or disbursement (which notice to
the Borrower (or such Subsidiary) shall be delivered reasonably promptly after
any such payment or disbursement), such payment to be made in Dollars, with
interest on the amount so paid or disbursed by such Letter of Credit Issuer, to
the extent not reimbursed prior to 1:00 P.M. (local time at the payment office
of the Letter of Credit Issuer) on the date of such payment or disbursement,
from and including the date paid or disbursed to but not including the date such
Letter of Credit Issuer is reimbursed therefor at a rate per annum which shall
be the rate then applicable to General Revolving Loans which are Prime Rate
Loans (plus an additional 3% per annum if not reimbursed by the third Business
Day after the date of such payment or disbursement), any such interest also to
be payable on demand.
(b) The Borrower's obligation under this section 3.3 to reimburse, or
cause a Subsidiary to reimburse, each Letter of Credit Issuer with respect to
Unpaid Drawings (including, in each case, interest thereon) shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Borrower may have or have
had against such Letter of Credit Issuer, the Administrative Agent, any other
Letter of Credit Issuer or any Lender, including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing, PROVIDED,
HOWEVER that the Borrower shall not be obligated to reimburse, or cause a
Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful payment made
by such Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer.
3.4. LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the issuance
by a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date
with respect to any Existing Letter of Credit), such Letter of Credit Issuer
shall be deemed to have sold and transferred to each Lender with a General
Revolving Commitment, and each such Lender (each a "PARTICIPANT") shall be
deemed irrevocably and unconditionally to have purchased and received from such
Letter of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's General Revolving Facility
Percentage, in such Letter of Credit, each substitute letter of credit, each
drawing made thereunder, the obligations of the Borrower under this Agreement
with respect thereto (although Letter of Credit Fees shall be payable directly
to the Administrative Agent for the account of the Lenders as provided in
section 4.1(b) and the Participants shall have no right to receive any portion
of any fees of the nature contemplated by section 4.1(c)), the obligations of
any Subsidiary of the Borrower under any Letter of Credit Documents pertaining
thereto, and any security for, or guaranty pertaining to, any of the foregoing.
Upon any change in the Commitments of the Lenders pursuant to section 12.4(b),
it is hereby agreed that, with respect to all outstanding Letters of Credit and
Unpaid Drawings, there shall be an automatic adjustment to the participations
pursuant to this section 3.4 to reflect the new General Revolving Facility
Percentages of the assigning and assignee Lender.
(b) In determining whether to pay under any Letter of Credit, a Letter
of Credit Issuer shall not have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by a Letter of Credit Issuer under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Letter of Credit Issuer any resulting
liability.
30
36
(c) In the event that a Letter of Credit Issuer makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed (or caused any
applicable Subsidiary to reimburse) such amount in full to such Letter of Credit
Issuer pursuant to section 3.3(a), such Letter of Credit Issuer shall promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's General Revolving Facility
Percentage of such payment in U.S. Dollars and in same day funds, PROVIDED,
HOWEVER, that no Participant shall be obligated to pay to the Administrative
Agent its General Revolving Facility Percentage of such unreimbursed amount for
any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Letter of Credit Issuer. If the Administrative
Agent so notifies any Participant required to fund a payment under a Letter of
Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business
Day, such Participant shall make available to the Administrative Agent for the
account of the relevant Letter of Credit Issuer such Participant's General
Revolving Facility Percentage of the amount of such payment on such Business Day
in same day funds. If and to the extent such Participant shall not have so made
its General Revolving Facility Percentage of the amount of such payment
available to the Administrative Agent for the account of the relevant Letter of
Credit Issuer, such Participant agrees to pay to the Administrative Agent for
the account of such Letter of Credit Issuer, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the account of such Letter of
Credit Issuer at the Federal Funds Effective Rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
relevant Letter of Credit Issuer its General Revolving Facility Percentage of
any payment under any Letter of Credit shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of such Letter of Credit Issuer its General Revolving Facility
Percentage of any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of any
other Participant to make available to the Administrative Agent for the account
of such Letter of Credit Issuer such other Participant's General Revolving
Facility Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to section 3.4(c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its General Revolving Facility Percentage thereof, in
U.S. dollars and in same day funds, an amount equal to such Participant's
General Revolving Facility Percentage of the principal amount thereof and
interest thereon accruing after the purchase of the respective participations,
as and to the extent so received.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of each Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off defense or other
right which the Borrower (or any Subsidiary) may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any person for whom any such transferee may be
acting), the Administrative Agent, any Letter of Credit Issuer, any
Lender, or other person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
(or any Subsidiary) and the beneficiary named in any such Letter of
Credit), other than any claim which the Borrower (or any Subsidiary
which is the account party with respect to a Letter of Credit) may have
against any applicable Letter of Credit Issuer for gross negligence or
wilful misconduct of such Letter of Credit Issuer in making payment
under any applicable Letter of Credit;
31
37
(iii) any draft, certificate or other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents: or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by the
Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective General Revolving Facility
Percentages, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Letter of Credit Issuer in performing its respective duties in
any way related to or arising out of its issuance of Letters of Credit, PROVIDED
that no Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements resulting from the Letter of Credit Issuer's gross
negligence or willful misconduct.
3.5. INCREASED COSTS. If after the Effective Date, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Letter of Credit Issuer or any Lender with any
request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency (in each case made subsequent to
the Effective Date) shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such Letter of Credit Issuer or such Lender's participation
therein, or (ii) shall impose on such Letter of Credit Issuer or any Lender any
other conditions affecting this Agreement, any Letter of Credit or such Lender's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Lender of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Lender hereunder
(other than any increased cost or reduction in the amount received or receivable
resulting from the imposition of or a change in the rate of taxes or similar
charges), then, upon demand to the Borrower by such Letter of Credit Issuer or
such Lender (a copy of which notice shall be sent by such Letter of Credit
Issuer or such Lender to the Administrative Agent), the Borrower shall pay to
such Letter of Credit Issuer or such Lender such additional amount or amounts as
will compensate any such Letter of Credit Issuer or such Lender for such
increased cost or reduction. A certificate submitted to the Borrower by any
Letter of Credit Issuer or any Lender, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Lender to the
Administrative Agent), setting forth, in reasonable detail, the basis for the
determination of such additional amount or amounts necessary to compensate any
Letter of Credit Issuer or such Lender as aforesaid shall be conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this section 3.5. Reference is
hereby made to the provisions of section 2.10(d) for certain limitations upon
the rights of a Letter of Credit Issuer or Lender under this section.
3.6. GUARANTY OF SUBSIDIARY LETTER OF CREDIT OBLIGATIONS. (a) The
Borrower hereby unconditionally guarantees, for the benefit of the
Administrative Agent and the Lenders, the full and punctual payment of the
Obligations of each Subsidiary under each Letter of Credit Document to which
such Subsidiary is now or hereafter becomes a party (such Obligations being
subject to certain limitations as provided in section 3.3(b) hereof). Upon
failure by any such Subsidiary to pay punctually any such amount, the Borrower
shall forthwith on demand by the Administrative Agent pay the amount not so paid
at the place and in the currency and otherwise in the manner specified in this
Agreement or any applicable Letter of Credit Document.
(b) As a separate, additional and continuing obligation, the Borrower
unconditionally and irrevocably undertakes and agrees, for the benefit of the
Administrative Agent and the Lenders, that, should any amounts not be
recoverable from the Borrower under section 3.6(a) for any reason whatsoever
(including,
32
38
without limitation, by reason of any provision of any Credit Document or any
other agreement or instrument executed in connection therewith being or becoming
void, unenforceable, or otherwise invalid under any applicable law) then,
notwithstanding any notice or knowledge thereof by any Lender, the
Administrative Agent, any of their respective Affiliates, or any other person,
at any time, the Borrower as sole, original and independent obligor, upon demand
by the Administrative Agent, will make payment to the Administrative Agent, for
the account of the Lenders and the Administrative Agent, of all such obligations
not so recoverable by way of full indemnity, in such currency and otherwise in
such manner as is provided in the Credit Documents.
(c) The obligations of the Borrower under this section shall be
unconditional and absolute and, without limiting the generality of the foregoing
shall not be released, discharged or otherwise affected by the occurrence, one
or more times, of any of the following:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect to any obligation of any Subsidiary under any Letter
of Credit Document, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement, any Note or any other Credit Document;
(iii) any release, non-perfection or invalidity of any direct
or indirect security for any obligation of the Borrower under this
Agreement, any Note or any other Credit Document or of any Subsidiary
under any Letter of Credit Document;
(iv) any change in the corporate existence, structure or
ownership of any Subsidiary or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Subsidiary or
its assets or any resulting release or discharge of any obligation of
any Subsidiary contained in any Letter of Credit Document;
(v) the existence of any claim, set-off or other rights which
the Borrower may have at any time against any Subsidiary, the
Administrative Agent, any Lender or any other person, whether in
connection herewith or any unrelated transactions;
(vi) any invalidity or unenforceability relating to or against
any Subsidiary for any reason of any Letter of Credit Document, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Subsidiary of any Obligations in respect of any Letter
of Credit; or
(vii) any other act or omission to act or delay of any kind by
any Subsidiary, the Administrative Agent, any Lender or any other
person or any other circumstance whatsoever which might, but for the
provisions of this section, constitute a legal or equitable discharge
of the Borrower's obligations under this section.
(d) The Borrower's obligations under this section shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Borrower under
the Credit Documents and by any Subsidiary under the Letter of Credit Documents
shall have been paid in full. If at any time any payment of any of the
Obligations of any Subsidiary in respect of any Letter of Credit Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such Subsidiary, the Borrower's obligations
under this section with respect to such payment shall be reinstated at such time
as though such payment had been due but not made at such time.
(e) The Borrower irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against any
Subsidiary or any other person, or against any collateral or guaranty of any
other person.
(f) Until the indefeasible payment in full of all of the Obligations
and the termination of the Commitments of the Lenders hereunder, the Borrower
shall have no rights, by operation of law or otherwise,
33
39
upon making any payment under this section to be subrogated to the rights of the
payee against any Subsidiary with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by any Subsidiary in respect thereof.
(g) In the event that acceleration of the time for payment of any
amount payable by any Subsidiary under any Letter of Credit Document is stayed
upon insolvency, bankruptcy or reorganization of such Subsidiary, all such
amounts otherwise subject to acceleration under the terms of any applicable
Letter of Credit Document shall nonetheless be payable by the Borrower under
this section forthwith on demand by the Administrative Agent.
SECTION 4. FEES; COMMITMENTS.
4.1. FEES. (a) The Borrower agrees to pay to the Administrative Agent a
Facility Fee ("FACILITY FEE") for the account of each Non-Defaulting Lender
which has a General Revolving Commitment for the period from and including the
Effective Date to but not including the date the Total General Revolving
Commitment has been terminated, on the average daily amount of the Total General
Revolving Commitment, whether used or unused, at the Applicable Facility Fee
Rate, payable quarterly in arrears on the last Business Day of each March, June,
September and December and the date the Total General Revolving Commitment is
terminated. As used herein, the term "APPLICABLE FACILITY FEE RATE" means 12.5
basis points per annum; PROVIDED, that subsequent to the fiscal quarter of the
Borrower ended nearest to June 30, 1997, the Applicable Facility Fee Rate will
be determined by reference to the rate per annum indicated in the Pricing Grid
Table which appears in section 2.8(g), based on the ratio referred to in section
9.6. Changes in the Applicable Facility Fee Rate shall be made and effective as
of the same date as is provided in section 2.8(g) in the case of the
determination or re-determination of the Applicable Eurodollar Margin. If any
such change in the Applicable Facility Fee Rate is retroactive to a date in a
period for which the Facility Fee has already been paid, the Borrower will
immediately pay to the Administrative Agent for the account of the Lenders all
additional Facility Fee due by reason of such increased Applicable Facility Fee
Rate. Any changes in the Applicable Facility Fee Rate shall be determined by the
Administrative Agent and the Administrative Agent will promptly provide notice
of such determinations to the Borrower and the Lenders. Any such determination
by the Administrative Agent pursuant to this section 4.1(a) shall be conclusive
and binding absent manifest error.
(b) The Borrower agrees to pay to the Administrative Agent, for the
account of each Non- Defaulting Lender, PRO RATA on the basis of its General
Revolving Facility Percentage, a fee in respect of each Letter of Credit (the
"LETTER OF CREDIT FEE"), computed for each day at the rate per annum equal to
the Applicable Eurodollar Margin then in effect on the Stated Amount of all
Letters of Credit outstanding on such day. Accrued Letter of Credit Fees shall
be due and payable quarterly in arrears on the last Business Day of each March,
June, September and December and on the date on which the Total Commitment is
terminated.
(c) The Borrower agrees to pay directly to each Letter of Credit Issuer
a fee in respect of each Letter of Credit issued by it (a "FACING FEE") computed
at such rate as may be agreed between such Letter of Credit Issuer and the
Borrower on the average daily Stated Amount of such Letter of Credit. Accrued
Facing Fees shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the date on which the
Total General Revolving Commitment is terminated.
(d) The Borrower agrees to pay directly to each Letter of Credit Issuer
upon each drawing under, and/or amendment, extension, renewal or transfer of, a
Letter of Credit issued by it such amount as shall at the time of such drawing,
amendment, extension, renewal or transfer be the administrative charge which
such Letter of Credit Issuer is customarily charging for drawings under or
amendments, extensions, renewals or transfers of, letters of credit issued by
it.
(e) The Borrower shall pay to the Administrative Agent on the Effective
Date and thereafter for its own account and/or for distribution to the Lenders
such fees as heretofore agreed by the Borrower and the Administrative Agent.
34
40
(f) All computations of Fees shall be made in accordance with section
12.7(b).
4.2. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three Business
Days' prior written notice (or telephonic notice confirmed in writing) to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Borrower shall have the
right, without premium or penalty, to terminate or to partially and permanently
reduce (x) the Unutilized Total General Revolving Commitment, or (y) the
Unutilized Total Swing Line Revolving Commitment, PROVIDED that (i) any such
termination or reduction shall apply to proportionately and permanently reduce
the applicable Commitment of each of the affected Lenders, (ii) any partial
reduction of the Unutilized Total General Revolving Commitment pursuant to this
section 4.2 shall be in the amount of at least $3,000,000 (or, if greater, in
integral multiples of $1,000,000), and (iii) any partial reduction of the
Unutilized Total Swing Line Revolving Commitment pursuant to this section 4.2
shall be in the amount of at least $250,000 (or, if greater, in integral
multiples of $100,000).
4.3. MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total
Commitment (and the Commitment of each Lender) shall terminate on August 15,
1997, unless the Closing Date has occurred on or prior to such date.
(b) The Total Commitment (and the Commitment of each Lender) shall
terminate on the earlier of (x) the Maturity Date and (y) the date on which a
Change of Control occurs.
(c) The Total General Revolving Commitment shall be permanently
reduced, without premium or penalty, at the time that any mandatory prepayment
of General Revolving Loans would be made pursuant to section 5.2(d) if General
Revolving Loans were then outstanding in the full amount of the Total General
Revolving Commitment, in an amount at least equal to the required prepayment of
principal of General Revolving Loans which would be required to be made in such
circumstance. Any such reduction shall apply to proportionately and permanently
reduce the General Revolving Commitment of each of the affected Lenders, and any
partial reduction of the Total General Revolving Commitment pursuant to this
section 4.3(c) shall be in the amount of at least $1,000,000 (or, if greater, in
integral multiples of $1,000,000). The Borrower will provide at least three (or
such lesser number as the Administrative Agent may permit in the exercise of
reasonable discretion) Business Days' prior written notice (or telephonic notice
confirmed in writing) to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders),
of any reduction of the Total General Revolving Commitment pursuant to this
section 4.3(c), specifying the date and amount of the reduction.
4.4. EXTENSION OF MATURITY DATE. At any time after July 1, 1998 and
during the 30 day period following delivery by the Borrower pursuant to section
8.1(a) of its consolidated financial statements for its fiscal year then most
recently ended, and annually thereafter during the 30 day period following
delivery by the Borrower of its consolidated financial statements pursuant to
section 8.1(a), the Borrower may request the Administrative Agent to determine
if all of the Lenders are then willing to extend the Maturity Date for a single
additional year. If the Borrower so requests, the Administrative Agent will so
advise the Lenders. If all of the Lenders in their sole discretion are all
willing to so extend the Maturity Date, after taking into account such
considerations as any Lender may deem relevant, the Borrower, the other
Borrowers, the Administrative Agent and all of the Lenders (including each
Letter of Credit Issuer) shall execute and deliver a definitive written
instrument so extending the Maturity Date. No such extension of the Maturity
Date shall be valid or effective for any purpose unless such definitive written
instrument is so signed and delivered within 60 days following the giving by the
Administrative Agent of notice to the Lenders that the Borrower has requested
such an extension.
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS. The Borrower shall have the right to prepay
Loans, in whole or in part, without premium or penalty, from time to time on the
following terms and conditions: (i) the Borrower shall give the Administrative
Agent at the Notice Office written or telephonic notice (in the case of
telephonic
35
41
notice, promptly confirmed in writing if so requested by the Administrative
Agent) of its intent to prepay the Loans, the amount of such prepayment and (in
the case of Eurodollar Loans or Money Market Rate Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be received by the
Administrative Agent by (x) 11:00 A.M. (local time at the Notice Office) three
Business Days prior to the date of such prepayment, in the case of any
prepayment of Eurodollar Loans, (y) 11:00 A.M. (local time at the Notice Office)
on the date of such prepayment, in the case of any prepayment of General
Revolving Loans which are Prime Rate Loans, or (z) 2:00 P.M. (local time at the
Notice Office) on the date of such prepayment, in the case of any prepayment of
Swing Line Revolving Loans, and which notice shall promptly be transmitted by
the Administrative Agent to each of the affected Lenders; (ii) in the case of
prepayment of any Borrowings under the General Revolving Facility, each partial
prepayment of any such Borrowing shall be in an aggregate principal of at least
$3,000,000 or an integral multiple of $1,000,000 in excess thereof, in the case
of Prime Rate Loans and at least $3,000,000 or an integral multiple of
$1,000,000 in excess thereof, in the case of Eurodollar Loans; (iii) in the case
of prepayment of any Borrowings under the Swing Line Revolving Facility, each
partial prepayment of any such Borrowing shall be in an aggregate principal of
at least $250,000 or an integral multiple of $100,000 in excess thereof; (iv) no
partial prepayment of any Loans made pursuant to a Borrowing shall reduce the
aggregate principal amount of the Loans outstanding pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount applicable thereto; (v) each
prepayment in respect of any Loans made pursuant to a Borrowing shall be applied
PRO RATA among such Loans; and (vi) each prepayment of Eurodollar Loans or Money
Market Rate Loans pursuant to this section 5.1 on any date other than the last
day of the Interest period applicable thereto, in the case of Eurodollar Loans,
or the maturity date thereof, in the case of Money Market Rate Loans, as the
case may be, shall be accompanied by any amounts payable in respect thereof
under section 2.11.
5.2. MANDATORY PREPAYMENTS. (a) If on any date (after giving effect to
any other payments on such date) the sum of (i) the aggregate outstanding
principal amount of General Revolving Loans PLUS (ii) the aggregate amount of
Letter of Credit Outstandings, exceeds the Total General Revolving Commitment as
then in effect, the Borrower shall prepay on such date that principal amount of
General Revolving Loans and, after General Revolving Loans have been paid in
full, Unpaid Drawings, in an aggregate amount at least equal to such excess. If,
after giving effect to the prepayment of General Revolving Loans and Unpaid
Drawings, the aggregate amount of Letter of Credit Outstandings exceeds the
Total General Revolving Commitment as then in effect, the Borrower shall pay to
the Administrative Agent an amount in cash and/or Cash Equivalents equal to such
excess and the Administrative Agent shall hold such payment as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower (which shall permit certain investments in
Cash Equivalents satisfactory to the Administrative Agent and the Borrower until
the proceeds are applied to the secured obligations).
(b) If on any date (after giving effect to any other payments on such
date) the aggregate outstanding principal amount of Swing Line Revolving Loans
exceeds the Unutilized Total General Revolving Commitment as then in effect, the
Borrower shall prepay on such date that principal amount of Swing Line Revolving
Loans in an aggregate amount at least equal to such excess. If on any date
(after giving effect to any other payments on such date) the aggregate
outstanding principal amount of Swing Line Revolving Loans exceeds the Total
Swing Line Revolving Commitment as then in effect, the Borrower shall prepay on
such date Swing Line Revolving Loans in an aggregate principal amount at least
equal to such excess.
(c) If on any date (after giving effect to any other payments on such
date) the sum of (i) the aggregate outstanding principal amount of General
Revolving Loans PLUS (ii) the aggregate outstanding principal amount of Swing
Line Revolving Loans, exceeds the Available Commitment as of the end of the most
recent fiscal quarter for which financial statements have been delivered
pursuant to section 8.1(a) or (b), the Borrower shall prepay on such date that
principal amount of General Revolving Loans and, after General Revolving Loans
have been paid in full, Swing Line Revolving Loans, in an aggregate amount at
least equal to such excess.
(d) If during any fiscal year of the Borrower, the Borrower and its
Subsidiaries have received cumulative Cash Proceeds during such fiscal year from
one or more Asset Sales in an aggregate amount
36
42
exceeding 10% of the Borrower's Consolidated Net Worth at the beginning of such
fiscal year, not later than the third Business Day following the date of receipt
of any Cash Proceeds in excess of such amount, an amount at least equal to 100%
of the Net Cash Proceeds then received in excess of such amount from any Asset
Sale shall be applied as a mandatory prepayment of principal of the then
outstanding General Revolving Loans; PROVIDED that if no Default under section
10.1(a) or Event of Default shall have occurred and be continuing and the making
of such prepayment at such time would result in an obligation on the part of the
Borrower to make a breakage payment in respect thereof under section 2.11 (which
has not been waived by the Required Lenders), the Borrower may upon notice to
the Administrative Agent (a copy of which notice the Administrative Agent shall
promptly transmit to each affected Lender) postpone making such prepayment for a
period of up to 30 days, or such shorter period as will result in no such
breakage payment being payable; and PROVIDED, FURTHER, that (i) if no Default
under section 10.1(a) or Event of Default shall have occurred and be continuing,
(ii) the Borrower and its Subsidiaries have scheduled Consolidated Capital
Expenditures during the following six months, and (iii) the Borrower notifies
the Administrative Agent of the amount and nature thereof and of its intention
to reinvest all or a portion of such Net Cash Proceeds in such Consolidated
Capital Expenditures during such six month period, then no such prepayment shall
be required to the extent the Borrower so indicates that such reinvestment will
take place. If at the end of any such six month period any portion of such Net
Cash Proceeds has not been so reinvested, such remaining amount shall be
immediately applied as a mandatory prepayment of principal of the then
outstanding General Revolving Loans. If the Borrower has postponed the date of
making any mandatory prepayment in accordance with the first PROVISO to the
first sentence of this section 5.2(d), during the period of such postponement
the Borrower will not incur additional Loans or request additional Letters of
Credit which would cause (x) the sum of the outstanding General Revolving Loans,
plus the Letter of Credit Outstandings, plus the portion of the Total Unutilized
General Revolving Commitment reserved for refunding of outstanding Swing Line
Revolving Loans, to be greater than (y) the amount to which the Total General
Revolving Commitment will be permanently reduced pursuant to section 4.3(c) as a
consequence of the events giving rise to such mandatory prepayment.
(e) On the date on which a Change of Control occurs, notwithstanding
anything to the contrary contained in this Agreement, no further Borrowings
shall be made and the then outstanding principal amount of all Loans, if any,
shall become due and payable and shall be prepaid in full, and the Borrower
shall contemporaneously either (i) cause all outstanding Letters of Credit to be
surrendered for cancellation (any such Letters of Credit to be replaced by
letters of credit issued by other financial institutions), or (ii) the Borrower
shall pay to the Administrative Agent an amount in cash and/or Cash Equivalents
equal to 100% of the Letter of Credit Outstandings and the Administrative Agent
shall hold such payment as security for the obligations of the Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower
(which shall permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent and the Borrower until the proceeds are applied to the
secured obligations).
(f) With respect to each prepayment of Loans required by this section
5.2, the Borrower shall designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) pursuant to which such prepayment is to be made,
PROVIDED that (i) the Borrower shall first so designate all Loans that are Prime
Rate Loans and Eurodollar Loans with Interest Periods ending on the date of
prepayment prior to designating any other Eurodollar Loans for prepayment, (ii)
if the outstanding principal amount of Eurodollar Loans made pursuant to a
Borrowing is reduced below the applicable Minimum Borrowing Amount as a result
of any such prepayment, then all the Loans outstanding pursuant to such
Borrowing shall be converted into Prime Rate Loans, and (iii) each prepayment of
any Loans made pursuant to a Borrowing shall be applied PRO RATA among such
Loans. In the absence of a designation by the Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under section 2.11. Any prepayment of Eurodollar
Loans or Money Market Rate Loans pursuant to this section 5.2 shall in all
events be accompanied by such compensation as is required by section 2.11.
5.3. METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its PRO RATA share)
37
43
account of the Lenders entitled thereto, not later than 11:00 A.M. (local time
at the Payment Office) on the date when due and shall be made in immediately
available funds and in lawful money of the United States of America at the
Payment Office, it being understood that written notice by the Borrower to the
Administrative Agent to make a payment from the funds in the Borrower's account
at the Payment Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this Agreement which are
made later than 11:00 A.M. (local time at the Payment Office) shall be deemed to
have been made on the next succeeding Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
5.4. NET PAYMENTS. (a) All payments made by the Borrower hereunder,
under any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in section 5.4(c), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future United States withholding taxes. The
Borrower will furnish to the Administrative Agent within 45 days after the date
of any withholding or deduction on account of United States withholding taxes
certified copies of tax receipts, or other evidence satisfactory to each
affected Lender, evidencing payment thereof by the Borrower.
(b) Each Lender that is not a United States person (as such term is
defined in section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to provide to the Borrower and the Administrative Agent on or prior to
the Effective Date, or in the cases of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to section 12.4 (unless
the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer and such Lender is in compliance with the provisions of
this section 5.4(b)), on the date of such assignment or transfer to such Lender,
(i) two accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001 (or successor forms) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement, any Note or any other Credit Document,
or (ii) if the Lender is not a "bank" within the meaning of section 881(c)(3)(A)
of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit F (any such certificate, a "SECTION 5.4(b)(ii) CERTIFICATE") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement, any Note or any other Credit Document.
In addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 5.4(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement, any Note or any other Credit Document,
or it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such Form or Certificate pursuant to this
section 5.4(b).
(c) Notwithstanding anything to the contrary contained in section
5.4(a), the Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or other similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in section
7701(a)(30) of the Code) for United States federal income tax purposes and which
has not provided to the Borrower such forms that establish a complete exemption
from such deduction or withholding.
38
44
SECTION 6. CONDITIONS PRECEDENT.
6.1. CONDITIONS PRECEDENT AT CLOSING DATE. The obligation of the
Lenders to make Loans, and of any Letter of Credit Issuer to issue Letters of
Credit, is subject to the satisfaction of each of the following conditions on
the Closing Date:
(A) EFFECTIVENESS; NOTES. On or prior to the Closing Date, (i)
the Effective Date shall have occurred and (ii) there shall have been
delivered to the Administrative Agent for the account of each Lender
the appropriate Note or Notes executed by the Borrower, in each case,
in the amount, maturity and as otherwise provided herein.
(B) FEES, ETC. The Borrower shall have paid or caused to be
paid all fees required to be paid by it on or prior to such date
pursuant to section 4 hereof and all reasonable fees and expenses of
the Administrative Agent and of special counsel to the Administrative
Agent which have been invoiced on or prior to such date in connection
with the preparation, execution and delivery of this Agreement and the
other Credit Documents and the consummation of the transactions
contemplated hereby and thereby.
(C) OTHER CREDIT DOCUMENTS, ETC. The Credit Parties named
therein shall have duly executed and delivered and there shall be in
full force and effect, and original counterparts shall have been
delivered to the Administrative Agent, in sufficient quantities for the
Administrative Agent and the Lenders, of, (i) the Subsidiary Guaranty
(as modified, amended or supplemented from time to time in accordance
with the terms thereof and hereof, the "SUBSIDIARY GUARANTY"),
substantially in the form attached hereto as Exhibit C-1, and (ii) the
Pledge Agreement (as modified, amended or supplemented from time to
time in accordance with the terms thereof and hereof, the "PLEDGE
AGREEMENT"), substantially in the form attached hereto as Exhibit C-2.
Certificates for the shares of stock pledged under the Pledge
Agreement, duly indorsed in blank, or accompanied by stock powers duly
signed in blank, shall have been delivered to the Collateral Agent.
(D) CORPORATE RESOLUTIONS AND APPROVALS. The Administrative
Agent shall have received, in sufficient quantity for the
Administrative Agent and the Lenders, certified copies of the
resolutions of the Board of Directors of the Borrower and each other
Credit Party, approving the Credit Documents to which the Borrower or
any such other Credit Party, as the case may be, is or may become a
party, and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to the execution,
delivery and performance by the Borrower or any such other Credit Party
of the Credit Documents to which it is or may become a party.
(E) INCUMBENCY CERTIFICATES. The Administrative Agent shall
have received, in sufficient quantity for the Administrative Agent and
the Lenders, a certificate of the Secretary or an Assistant Secretary
of the Borrower and of each other Credit Party, certifying the names
and true signatures of the officers of the Borrower or such other
Credit Party, as the case may be, authorized to sign the Credit
Documents to which the Borrower or such other Credit Party is a party
and any other documents to which the Borrower or any such other Credit
Party is a party which may be executed and delivered in connection
herewith.
(F) OPINION OF COUNSEL. On the Closing Date, the
Administrative Agent shall have received an opinion, addressed to the
Administrative Agent and each of the Lenders and dated the Closing
Date, from Calfee, Halter & Griswold LLP, special counsel to the
Borrower, substantially in the form of Exhibit D hereto and covering
such other matters incident to the transactions contemplated hereby as
the Administrative Agent may reasonably request, such opinion to be in
form and substance satisfactory to the Administrative Agent.
(G) EXISTING LINE OF CREDIT. The Borrower shall have
terminated its line of credit with KeyBank and prepaid all borrowings
thereunder.
39
45
(H) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings and all documents incidental to the transactions
contemplated hereby shall be satisfactory in substance and form to the
Administrative Agent and the Lenders and the Administrative Agent and
its special counsel and the Lenders shall have received all such
counterpart originals or certified or other copies of such documents as
the Administrative Agent or its special counsel or any Lender may
reasonably request.
6.2. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligations of the
Lenders to make each Loan and/or of a Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(A) NOTICE OF BORROWING, ETC. The Administrative Agent shall
have received a Notice of Borrowing meeting the requirements of section
2.3 with respect to the incurrence of Loans or a Letter of Credit
Request meeting the requirement of section 3.2 with respect to the
issuance of a Letter of Credit.
(B) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties of the Credit Parties contained herein or in the other
Credit Documents 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 Credit Event, except to the
extent that such representations and warranties expressly relate to an
earlier specified date, in which case such representations and
warranties shall have been true and correct in all material respects as
of the date when made.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Lenders that all of
the applicable conditions specified in section 6.1 and/or 6.2, as the case may
be, exist as of that time. All of the certificates, legal opinions and other
documents and papers referred to in this section 6, unless otherwise specified,
shall be delivered to the Administrative Agent for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts for each of the
Lenders, and the Administrative Agent will promptly distribute to the Lenders
their respective Notes and the copies of such other certificates, legal opinions
and documents.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and/or to issue and/or to participate in the Letters of Credit
provided for herein, the Borrower makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and each Credit Event:
7.1. CORPORATE STATUS, ETC. Each of the Borrower and its Subsidiaries
(i) is a duly organized or formed and validly existing corporation, partnership
or limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its formation and has the corporate, partnership or
limited liability company power and authority, as applicable, to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage, and (ii) has duly qualified and is authorized to
do business in all jurisdictions where it is required to be so qualified except
where the failure to be so qualified would not have a Material Adverse Effect.
7.2. SUBSIDIARIES. Annex II hereto lists, as of the date hereof, each
Subsidiary of the Borrower (and the direct and indirect ownership interest of
the Borrower therein).
7.3. CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is party and has
40
46
taken all necessary corporate or other organizational action to authorize the
execution, delivery and performance of the Credit Documents to which it is
party. Each Credit Party has duly executed and delivered each Credit Document to
which it is party and each Credit Document to which it is party constitutes the
legal, valid and binding agreement or obligation of such Credit Party
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.4. NO VIOLATION. Neither the execution, delivery and performance by
any Credit Party of the Credit Documents to which it is party nor compliance
with the terms and provisions thereof (i) will contravene any provision of any
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality applicable to such Credit Party or its
properties and assets, (ii) will conflict with or result in any breach of, any
of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien (other than any Lien created by any Security Document) upon
any of the property or assets of such Credit Party pursuant to the terms of any
promissory note, bond, debenture, indenture, mortgage, deed of trust, credit or
loan agreement, or any other material agreement or instrument, to which such
Credit Party is a party or by which it or any of its property or assets are
bound or to which it may be subject, or (iii) will violate any provision of the
certificate or articles of incorporation, code of regulations or by-laws, or
other charter documents of such Credit Party.
7.5. GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by any Credit Party of
any Credit Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any Credit Document to which any Credit
Party is a party, other than any filings and recordings which may be required in
connection with the perfection of any Liens created by the Security Documents.
7.6. LITIGATION. There are no actions, suits or proceedings pending or,
to, the knowledge of the Borrower, threatened with respect to the Borrower or
any of its Subsidiaries (i) that have, or could reasonably be expected to have,
a Material Adverse Effect, or (ii) which question the validity or enforceability
of any of the Credit Documents, or of any action to be taken by any Credit Party
pursuant to any of the Credit Documents to which it is a party.
7.7. USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all Loans
shall be utilized (i) to retire the Indebtedness referred to in section 6.1(g),
to the extent not otherwise retired out of the proceeds of the issuance of the
Convertible Subordinated Debentures due 2004, and (ii) for general corporate
purposes not inconsistent with the requirements of this Agreement.
(b) No part of the proceeds of any Credit Event will be used directly
or indirectly to purchase or carry Margin Stock, or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock, in violation of any
of the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. At no time
would more than 25% of the value of the assets of the Borrower or of the
Borrower and its consolidated Subsidiaries that are subject to any "arrangement"
(as such term is used in section 221.2(g) of such Regulation U) hereunder be
represented by Margin Stock.
7.8. FINANCIAL STATEMENTS, ETC. (a) The Borrower has furnished to the
Lenders and the Administrative Agent complete and correct copies of (i) the
audited consolidated balance sheets of the Borrower and its consolidated
subsidiaries as of June 30, 1996, and June 30, 1995, and the related audited
consolidated statements of income, stockholders' equity, and cash flows for the
fiscal years then ended, accompanied by the unqualified report thereon of the
Borrower's independent accountants; and (ii) the unaudited condensed
consolidated balance sheets of the Borrower and its consolidated subsidiaries as
of March 31, 1997, and the related unaudited condensed consolidated statements
of income and of cash flows of the Borrower and its
41
47
consolidated subsidiaries for the fiscal quarter or quarters then ended, as
contained in the Form 10-Q Quarterly Report of the Borrower filed with the SEC.
All such financial statements have been prepared in accordance with GAAP,
consistently applied (except as stated therein), and fairly present the
financial position of the Borrower and its consolidated subsidiaries as of the
respective dates indicated and the consolidated results of their operations and
cash flows for the respective periods indicated, subject in the case of any such
financial statements which are unaudited, to the absence of footnotes and to
normal audit adjustments which the Borrower reasonably believes will not involve
a Material Adverse Effect.
(b) The Borrower has received consideration which is the reasonable
equivalent value of the obligations and liabilities that the Borrower has
incurred to the Administrative Agent and the Lenders. The Borrower now has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage and is now solvent and able to
pay its debts as they mature and the Borrower, as of the Closing Date, owns
property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay the Borrower's debts; and the
Borrower is not entering into the Credit Documents with the intent to hinder,
delay or defraud its creditors.
(c) The Borrower has delivered or caused to be delivered to the Lenders
prior to the execution and delivery of this Agreement (i) a copy of the
Borrower's Report on Form 10-K as filed (without Exhibits) with the SEC for its
fiscal year ended June 30, 1996, which contains a general description of the
business and affairs of the Borrower and its Subsidiaries, (ii) a confidential
information memorandum dated June 1997 prepared by the Administrative Agent
(with assistance from the Borrower) which contains information with respect to
the business, properties and operations of the Borrower and its Subsidiaries
(the "CONFIDENTIAL INFORMATION MEMORANDUM"), and (iii) financial projections
prepared by management of the Borrower for the Borrower and its Subsidiaries for
the fiscal years 1997-2000, which are included as part of Tab VI of the
Confidential Information Memorandum (the "FINANCIAL PROJECTIONS"). The Financial
Projections were prepared on behalf of the Borrower in good faith after taking
into account the existing and historical levels of business activity of the
Borrower and its Subsidiaries, trends known to the Borrower, including general
economic trends, and all other information, assumptions and estimates considered
by management of the Borrower and its Subsidiaries to be pertinent thereto. The
Financial Projections were considered by management of the Borrower, as of such
date of preparation, to be realistically achievable; PROVIDED, that no
representation or warranty is made as to the impact of future general economic
conditions or as to whether the Borrower's projected consolidated results as set
forth in the Financial Projections will actually be realized. No facts are known
to the Borrower at the date hereof which, if reflected in the Financial
Projections, would result in a material adverse change in the assets,
liabilities, results of operations or cash flows reflected therein.
7.9. NO MATERIAL ADVERSE CHANGE. Since June 30, 1996, there has been no
change in the condition, business or affairs of the Borrower and its
Subsidiaries taken as a whole, or their properties and assets considered as an
entirety, except for changes, none of which, individually or in the aggregate,
has had or could reasonably be expected to have, a Material Adverse Effect.
7.10. TAX RETURNS AND PAYMENTS. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Borrower and each of its Subsidiaries has established on its books such charges,
accruals and reserves in respect of taxes, assessments, fees and other
governmental charges for all fiscal periods as are required by GAAP. The
Borrower knows of no proposed assessment for additional federal, foreign or
state taxes for any period, or of any basis therefor, which, individually or in
the aggregate, taking into account such charges, accruals and reserves in
respect thereof as the Borrower and its Subsidiaries have made, could reasonably
be expected to have a Material Adverse Effect.
7.11. TITLE TO PROPERTIES, ETC. The Borrower and each of its
Subsidiaries has good and marketable title, in the case of real property, and
good title (or valid leasehold interests, in the case of any leased property),
in the case of all other property, to all of its properties and assets free and
clear of Liens other than Liens permitted by section 9.3. The interests of the
Borrower and each of its Subsidiaries in the properties reflected
42
48
in the most recent balance sheet referred to in section 7.8, taken as a whole,
were sufficient, in the judgment of the Borrower, as of the date of such balance
sheet for purposes of the ownership and operation of the businesses conducted by
the Borrower and such Subsidiaries.
7.12. LAWFUL OPERATIONS, ETC. The Borrower and each of its Subsidiaries
(i) holds all necessary federal, state and local governmental
licenses, registrations, certifications, permits and authorizations
necessary to conduct its business, and
(ii) is in full compliance with all material requirements
imposed by law, regulation or rule, whether federal, state or local,
which are applicable to it, its operations, or its properties and
assets, including without limitation, applicable requirements of the
United States Food and Drug Administration, federal and state Medicaid
and Medicare requirements, Environmental Laws and zoning ordinances,
except for any failure to obtain and maintain in effect, or noncompliance,
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
7.13. ENVIRONMENTAL MATTERS. (a) The Borrower and each of its
Subsidiaries is in compliance with all Environmental Laws governing its business
except to the extent that any such failure to comply (together with any
resulting penalties, fines or forfeitures) would not reasonably be expected to
have a Material Adverse Effect. All licenses, permits, registrations or
approvals required for the business of the Borrower and each of its
Subsidiaries, as conducted as of the Closing Date, under any Environmental Law
have been secured and the Borrower and each of its Subsidiaries is in
substantial compliance therewith, except for such licenses, permits,
registrations or approvals the failure to secure or to comply therewith is not
reasonably likely to have a Material Adverse Effect. Neither the Borrower nor
any of its Subsidiaries has received written notice, or otherwise knows, that it
is in any respect in noncompliance with, breach of or default under any
applicable writ, order, judgment, injunction, or decree to which the Borrower or
such Subsidiary is a party or which would affect the ability of the Borrower or
such Subsidiary to operate any real property and no event has occurred and is
continuing which, with the passage of time or the giving of notice or both,
would constitute noncompliance, breach of or default thereunder, except in each
such case, such noncompliance, breaches or defaults as would not reasonably be
expected to, in the aggregate, have a Material Adverse Effect. There are as of
the Closing Date no Environmental Claims pending or, to the best knowledge of
the Borrower, threatened wherein an unfavorable decision, ruling or finding
would reasonably be expected to have a Material Adverse Effect. There are no
facts, circumstances, conditions or occurrences on any Real Property now or at
any time owned, leased or operated by the Borrower or any of its Subsidiaries or
on any property adjacent to any such Real Property, which are known by the
Borrower or as to which the Borrower or any such Subsidiary has received written
notice, that could reasonably be expected (i) to form the basis of an
Environmental Claim against the Borrower or any of its Subsidiaries or any Real
Property of the Borrower or any of its Subsidiaries, or (ii) to cause such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property under any Environmental Law, except in
each such case, such Environmental Claims or restrictions that individually or
in the aggregate would not reasonably be expected to have a Material Adverse
Effect.
(b) Hazardous Materials have not at any time been (i) generated, used,
treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any such Real Property,
in each case where such occurrence or event is not in compliance with
Environmental Laws and is reasonably likely to have a Material Adverse Effect.
7.14. COMPLIANCE WITH ERISA. Compliance by the Borrower with the
provisions hereof and Credit Events contemplated hereby will not involve any
prohibited transaction within the meaning of ERISA or section 4975 of the Code.
At and as of the Effective date, the Borrower and each of its Subsidiaries:
(i) has fulfilled all obligations under minimum funding
standards of ERISA and the Code with respect to each Plan that is not a
Multiemployer Plan or a Multiple Employer Plan,
43
49
(ii) has satisfied all respective contribution obligations in
respect of each Multiemployer Plan and each Multiple Employer Plan,
(iii) is in compliance in all material respects with all other
applicable provisions of ERISA and the Code with respect to each Plan,
each Multiemployer Plan and each Multiple Employer Plan, and
(iv) has not incurred any liability under the Title IV of
ERISA to the PBGC with respect to any Plan, any Multiemployer Plan, any
Multiple Employer Plan, or any trust established thereunder. No Plan or
trust created thereunder has been terminated, and there have been no
Reportable Events, with respect to any Plan or trust created thereunder
or with respect to any Multiemployer Plan or Multiple Employer Plan,
which termination or Reportable Event will or could result in the
termination of such Plan, Multiemployer Plan or Multi Employer Plan and
give rise to a material liability of the Borrower or any ERISA
Affiliate in respect thereof.
7.15. INTELLECTUAL PROPERTY, ETC. The Borrower and each of its
Subsidiaries has obtained or has the right to use all material patents,
trademarks, servicemarks, trade names, copyrights, licenses and other rights
with respect to the foregoing necessary for the present and planned future
conduct of its business, without any known conflict with the rights of others,
EXCEPT for such patents, trademarks, servicemarks, trade names, copyrights,
licenses and rights, the loss of which, and such conflicts, which in any such
case individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
7.16. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any of its
Subsidiaries is subject to regulation with respect to the creation or incurrence
of Indebtedness under the Investment Company Act of 1940, as amended, the
Interstate Commerce Act, as amended, the Federal Power Act, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any applicable state
public utility law.
7.17. BURDENSOME CONTRACTS; LABOR RELATIONS. Neither the Borrower nor
any of its Subsidiaries (i) is subject to any burdensome contract, agreement,
corporate restriction, judgment, decree or order, (ii) is a party to any labor
dispute affecting any bargaining unit or other group of employees generally,
(iii) is subject to any material strike, slow down, workout or other concerted
interruptions of operations by employees of the Borrower or any Subsidiary,
whether or not relating to any labor contracts, (iv) is subject to any
significant pending or, to the knowledge of the Borrower, threatened, unfair
labor practice complaint, before the National Labor Relations Board, and (v) is
subject to any significant pending or, to the knowledge of the Borrower,
threatened, grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement, (vi) is subject to any significant
pending or, to the knowledge of the Borrower, threatened, significant strike,
labor dispute, slowdown or stoppage, or (vii) is, to the knowledge of the
Borrower, involved or subject to any union representation organizing or
certification matter with respect to the employees of the Borrower or any of its
Subsidiaries, EXCEPT (with respect to any matter specified in any of the above
clauses), for such matters as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
7.18. EXISTING INDEBTEDNESS. Annex III sets forth a true and complete
list, as of the date or dates set forth therein, of all Indebtedness (other than
Capitalized Lease Obligations) of the Borrower and each of its Subsidiaries, on
a consolidated basis, which (i) has an outstanding principal amount of at least
$1,000,000, or (ii) is secured by any Lien on any property of the Borrower or
any Subsidiary, and which will be outstanding on the Closing Date after giving
effect to any Borrowing hereunder on the Closing Date, other than the
Indebtedness created under the Credit Documents (all such Indebtedness of the
Borrower, whether or not in a principal amount meeting such threshold or
otherwise not required to be so listed on Annex III, herein the "EXISTING
INDEBTEDNESS"). The Borrower has provided to the Administrative Agent prior to
the date of execution hereof true and complete copies of all agreements and
instruments governing the Indebtedness listed on Annex III (the "EXISTING
INDEBTEDNESS AGREEMENTS").
7.19. TRUE AND COMPLETE DISCLOSURE. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Borrower
or any of its Subsidiaries in writing to the
44
50
Administrative Agent or any Lender specifically for purposes of this Agreement,
other than the Financial Projections (as to which representations are made only
as provided in section 7.8), is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of such person in writing to any
Lender specifically for purposes of this Agreement will be, true and accurate in
all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time in light of
the circumstances under which such information was provided, except that any
such future information consisting of financial projections prepared by
management of the Borrower is only represented herein as being based on good
faith estimates and assumptions believed by such persons to be reasonable at the
time made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ materially from the
projected results. As of the Effective Date, there is no fact known to the
Borrower or any of its Subsidiaries which has, or could reasonably be expected
to have, a Material Adverse Effect which has not theretofore been disclosed in
writing to the Lenders.
SECTION 8. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that so long as this Agreement
is in effect and until such time as the Total Commitment has been terminated, no
Notes are outstanding and the Loans, together with interest, Fees and all other
Obligations hereunder, have been paid in full:
8.1. REPORTING REQUIREMENTS. The Borrower will furnish to each Lender
and the Administrative Agent:
(A) ANNUAL FINANCIAL STATEMENTS. Promptly and in any event
within 90 days after the close of each fiscal year of the Borrower, the
consolidated and consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated and consolidating statements of income, of
stockholder's equity and of cash flows for such fiscal year, in each
case setting forth comparative figures for the preceding fiscal year,
all in reasonable detail and accompanied by the opinion with respect to
such consolidated financial statements of independent public
accountants of recognized national standing selected by the Borrower,
which opinion shall be unqualified and shall (i) state that such
accountants audited such consolidated financial statements in
accordance with generally accepted auditing standards, that such
accountants believe that such audit provides a reasonable basis for
their opinion, and that in their opinion such consolidated financial
statements present fairly, in all material respects, the consolidated
financial position of the Borrower and its consolidated subsidiaries as
at the end of such fiscal year and the consolidated results of their
operations and cash flows for such fiscal year in conformity with
generally accepted accounting principles, or (ii) contain such
statements as are customarily included in unqualified reports of
independent accountants in conformity with the recommendations and
requirements of the American Institute of Certified Public Accountants
(or any successor organization).
(B) QUARTERLY FINANCIAL STATEMENTS. Promptly and in any event
within 45 days after the close of each of the quarterly accounting
periods in each fiscal year of the Borrower, the unaudited condensed
consolidated and consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such quarterly period and
the related unaudited condensed consolidated and consolidating
statements of income and of cash flows for such quarterly period, and
setting forth, in the case of such unaudited consolidated statements of
income and of cash flows, comparative figures for the related periods
in the prior fiscal year, and which consolidated financial statements
shall be certified on behalf of the Borrower by the Chief Financial
Officer or other Authorized Officer of the Borrower, subject to changes
resulting from normal year-end audit adjustments.
(C) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the
delivery of the financial statements provided for in sections 8.1(a)
and (b), a certificate on behalf of the Borrower of the Chief Financial
Officer or other Authorized Officer of the Borrower to the effect that,
to the best knowledge
45
51
of the Borrower, no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate shall set forth the calculations
required to establish compliance with the provisions of sections 9.6,
9.7 and 9.8 and to determine the Available Commitment Amount as of the
end of such quarterly period.
(D) BUDGET. Not later than 90 days after the commencement of
any fiscal year of the Borrower and its Subsidiaries, a consolidated
budget in reasonable detail for each of the four fiscal quarters of
such fiscal year, and (if and to the extent prepared by management of
the Borrower) for any subsequent fiscal years, as customarily prepared
by management for its internal use, setting forth, with appropriate
discussion, the forecasted balance sheet, income statement, operating
cash flows and capital expenditures of the Borrower and its
Subsidiaries for the period covered thereby, and the principal
assumptions upon which forecasts and budget are based.
(E) NOTICE OF DEFAULT, LITIGATION OR CERTAIN MATTERS INVOLVING
MAJOR CUSTOMERS OR SUPPLIERS OR LEGAL REQUIREMENTS. Promptly, and in
any event within three Business Days, in the case of clause (i) below,
or five Business Days, in the case of clause (ii), (iii) or (iv) below,
after the Borrower obtains actual knowledge thereof, notice of
(i) the occurrence of any event which constitutes a
Default or Event of Default, which notice shall specify the
nature thereof, the period of existence thereof and what
action the Borrower proposes to take with respect thereto,
(ii) any litigation or governmental or regulatory
investigation or proceeding pending against or involving the
Borrower or any of its Material Subsidiaries which (A)
involves any federal or state "anti-kickback" laws or
regulations, or possible loss of any material governmental
license, certification, license or authorization, or (B) the
Borrower reasonably expects to have a Material Adverse Effect
or a material adverse effect on the ability of the Borrower to
perform its obligations hereunder or under any other Credit
Document,
(iii) any significant adverse change (in the
Borrower's reasonable judgment) in the Borrower's or any
Subsidiary's relationship with, or any significant event or
circumstance which is in the Borrower's reasonable judgment
likely to adversely affect the Borrower's or any Subsidiary's
relationship with, (A) any customer (or related group of
customers) representing more than 10% of the Borrower's
consolidated revenues during its most recent fiscal year, or
(B) any supplier which is significant to the Borrower and its
Subsidiaries considered as an entirety, and
(iv) any significant change in the reimbursement or
other provisions of the Medicaid or Medicare programs which
the Borrower reasonably expects to have a Material Adverse
Effect.
(F) AUDITORS' INTERNAL CONTROL COMMENT LETTERS, ETC. Promptly
upon receipt thereof, a copy of each letter or memorandum commenting on
internal accounting controls which is submitted to the Borrower by its
independent accountants in connection with any annual audit made by
them of the books of the Borrower.
(G) ERISA. Promptly, and in any event within 10 days after the
Borrower obtains actual knowledge of the occurrence of any of the
following, the Borrower will deliver to each of the Lenders a
certificate on behalf of the Borrower of an Authorized Officer of the
Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA
Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Borrower,
the Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or
the Plan administrator with respect thereto:
46
52
(i) that a Reportable Event has occurred with respect
to any Plan;
(ii) the institution of any steps by the Borrower,
any ERISA Affiliate, the PBGC or any other person to terminate
any Plan;
(iii) the institution of any steps by the Borrower or
any ERISA Affiliate to withdraw from any Plan;
(iv) the institution of any steps by the Borrower or
any Subsidiary to withdraw from any Multiemployer Plan or
Multiple Employer Plan, if such withdrawal could result in
withdrawal liability (as described in Part 1 of Subtitle E of
Title IV of ERISA) in excess of $1,000,000;
(v) a non-exempt "prohibited transaction" within the
meaning of section 406 of ERISA in connection with any Plan;
(vi) that a Plan has an Unfunded Current Liability
exceeding $1,000,000;
(vii) any material increase in the contingent
liability of the Borrower or any Subsidiary with respect to
any post-retirement welfare liability; or
(viii) the taking of any action by, or the
threatening of the taking of any action by, the Internal
Revenue Service, the Department of Labor or the PBGC with
respect to any of the foregoing.
(H) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within 10 Business Days after, an officer of the Borrower obtains
actual knowledge thereof, notice of any of the following environmental
matters which involves any reasonable likelihood (in the Borrower's
reasonable judgment) of resulting in a Material Adverse Effect: (i) any
pending or threatened (in writing) Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries; (ii) any condition
or occurrence on or arising from any Real Property owned or operated by
the Borrower or any of its Subsidiaries that (A) results in
noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or (B) would reasonably be expected to
form the basis of an Environmental Claim against the Borrower or any of
its Subsidiaries or any such Real Property; (iii) any condition or
occurrence on any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries that could reasonably be expected
to cause such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower or any of
its Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency. All such notices shall describe in
reasonable detail the nature of the Environmental Claim and the
Borrower's or such Subsidiary's response thereto.
(I) SEC REPORTS AND REGISTRATION STATEMENTS. Promptly upon
transmission thereof or other filing with the SEC, copies of all
registration statements (other than the exhibits thereto and any
registration statement on Form S-8 or its equivalent) and annual,
quarterly or current reports that the Borrower or any of its
Subsidiaries files with the SEC.
(J) FINANCIAL STATEMENTS RELATING TO PERMITTED ACQUISITIONS.
Promptly and in any event prior to or contemporaneously with the
delivery of any financial statements referred to in section 8.1(a) or
(b) covering any fiscal period during which a Permitted Acquisition has
been completed, copies of the financial statements of the person or
business unit which is the subject of such Permitted
47
53
Acquisition, which financial statements are to be utilized in
computations of Consolidated EBIT and Consolidated EBITDA.
(K) OTHER INFORMATION. With reasonable promptness, such other
information or documents (financial or otherwise) relating to the
Borrower or any of its Subsidiaries as any Lender (through the
Administrative Agent) may reasonably request from time to time.
8.2. BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will cause
each of its Subsidiaries to, (i) keep proper books of record and account, in
which full and correct entries shall be made of all financial transactions and
the assets and business of the Borrower or such Subsidiaries, as the case may
be, in accordance with GAAP, in the case of the Borrower, or which are
reconcilable to GAAP, in the case of any Subsidiary; and (ii) permit, upon at
least five Business Days' notice to the Chief Financial Officer or any other
Authorized Officer of the Borrower, officers and designated representatives of
the Administrative Agent or any of the Lenders to visit and inspect any of the
properties or assets of the Borrower and any of its Subsidiaries in whomsoever's
possession (but only to the extent the Borrower or such Subsidiary has the right
to do so to the extent in the possession of another person), and to examine the
books of account of the Borrower and any of its Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, its and their officers and independent
accountants and independent actuaries (the Borrower having been offered an
opportunity to be present by telephone or in person for any discussions with
such independent accountants or independent actuaries), if any, all at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent or any of the Lenders may request.
8.3. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, (a) maintain insurance coverage by such insurers and in such
forms and amounts and against such risks as are generally consistent with the
insurance coverage maintained by the Borrower and its Subsidiaries at the date
hereof, and (b) forthwith upon the Administrative Agent's written request,
furnish to the Administrative Agent such information about such insurance as the
Administrative Agent may from time to time reasonably request, which information
shall be prepared in form and detail satisfactory to the Administrative Agent
and certified by an Authorized Officer of the Borrower.
8.4. PAYMENT OF TAXES AND CLAIMS. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; PROVIDED that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP; and PROVIDED,
FURTHER, that the Borrower will not be considered to be in default of any of the
provisions of this sentence if the Borrower or any Subsidiary fails to pay any
such amount which, individually or in the aggregate, is immaterial to the
Borrower and its Subsidiaries considered as an entirety.
8.5. CORPORATE FRANCHISES. The Borrower will do, and will cause each of
its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its corporate or other organizational
existence, rights, authority and franchises, PROVIDED that nothing in this
section 8.5 shall be deemed to prohibit (i) any transaction permitted by section
9.2; (ii) the termination of existence of any Subsidiary if the Borrower
determines that such termination is in its best interest; or (iii) the loss of
any rights, authorities or franchises if the loss thereof, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
8.6. GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements,
48
54
extensions, additions, betterments and improvements, thereto, to the extent and
in the manner customary for companies in similar businesses.
8.7. COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will cause
each of its Subsidiaries to, comply, in all material respects, with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, other than those (i)
being contested in good faith by appropriate proceedings, as to which adequate
reserves are established to the extent required under GAAP, and (ii) the
noncompliance with which would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse effect on the
ability of the Borrower to perform its obligations under any Credit Document.
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limitation of the
covenants contained in section 8.7 hereof:
(a) The Borrower will, and will cause each of its Subsidiaries
to, (i) comply, in all material respects, with all Environmental Laws
applicable to the ownership, lease or use of all Real Property now or
hereafter owned, leased or operated by the Borrower or any of its
Subsidiaries, and promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, except for such
noncompliance as would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse
effect on the ability of the Borrower to perform its obligations under
any Credit Document; and (ii) keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such
Environmental Laws which are not permitted under section 9.3.
(b) Without limitation of the foregoing, if the Borrower or
any of its Subsidiaries shall generate, use, treat, store, release or
dispose of, or permit the generation, use, treatment, storage, release
or disposal of, Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, any such action shall be
effected only in the ordinary course of business and in any event in
compliance, in all material respects, with all Environmental Laws
applicable thereto, except for such noncompliance as would not have,
and which would not be reasonably expected to have, a Material Adverse
Effect or a material adverse effect on the ability of the Borrower to
perform its obligations under any Credit Document.
(c) If required to do so under any applicable order of any
governmental agency, the Borrower will undertake, and cause each of its
Subsidiaries to undertake, any clean up, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from
any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries in accordance with, in all material respects, the
requirements of all applicable Environmental Laws and in accordance
with, in all material respects, such orders of all governmental
authorities, except (i) to the extent that the Borrower or such
Subsidiary is contesting such order in good faith and by appropriate
proceedings and for which adequate reserves have been established to
the extent required by GAAP, or (ii) for such noncompliance as would
not have, and which would not be reasonably expected to have, a
Material Adverse Effect or a material adverse effect on the ability of
the Borrower to perform its obligations under any Credit Document.
8.9. FISCAL YEARS, FISCAL QUARTERS. The Borrower will, for consolidated
financial reporting purposes, continue to use June 30 as the end of its fiscal
year and September 30, December 31, March 31 and June 30 as the end of its
fiscal quarters. If the Borrower shall change any of its Subsidiaries' fiscal
years or fiscal quarters (other than the fiscal year or fiscal quarters of a
person which becomes a Subsidiary, made at the time such person becomes a
Subsidiary, to conform to the Borrower's fiscal year and fiscal quarters or to
conform to the fiscal year or fiscal quarters which the Borrower generally
utilizes for its Subsidiaries), the Borrower will promptly, and in any event
within 30 days following any such change, deliver a notice to the Administrative
Agent and the Lenders describing such change and any material accounting entries
made in connection therewith and stating whether such change will have any
impact upon any financial computations to be made hereunder, and
49
55
if any such impact is foreseen, describing in reasonable detail the nature and
extent of such impact. If the Required Lenders determine that any such change
will have any impact upon any financial computations to be made hereunder which
is adverse to the Lenders, the Borrower will, if so requested by the
Administrative Agent, enter into an amendment to this Agreement, in form and
substance satisfactory to the Administrative Agent and the Required Lenders,
modifying any of the financial covenants or related provisions hereof in such
manner as the Required Lenders determine is necessary to eliminate such adverse
effect.
8.10. CERTAIN SUBSIDIARIES TO JOIN IN SUBSIDIARY GUARANTY. (a) In the
event that at any time after the Closing Date
(x) the Borrower has any Subsidiary (other than a Foreign
Subsidiary as to which section 8.10(b) applies) which is not a party to
the Subsidiary Guaranty, or
(y) an Event of Default shall have occurred and be continuing
and the Borrower has any Subsidiary which is not a party to the
Subsidiary Guaranty,
the Borrower will notify the Administrative Agent in writing of such event,
identifying the Subsidiary in question and referring specifically to the rights
of the Administrative Agent and the Lenders under this section. The Borrower
will, within 30 days following request therefor from the Administrative Agent
(who may give such request on its own initiative or upon request by the Required
Lenders), cause such Subsidiary to deliver to the Administrative Agent, in
sufficient quantities for the Lenders, (i) a joinder supplement, satisfactory in
form and substance to the Administrative Agent and the Required Lenders, duly
executed by such Subsidiary, pursuant to which such Subsidiary joins in the
Subsidiary Guaranty as a guarantor thereunder, and (ii) if such Subsidiary is a
corporation, resolutions of the Board of Directors of such Subsidiary, certified
by the Secretary or an Assistant Secretary of such Subsidiary as duly adopted
and in full force and effect, authorizing the execution and delivery of such
joinder supplement, or if such Subsidiary is not a corporation, such other
evidence of the authority of such Subsidiary to execute such joinder supplement
as the Administrative Agent may reasonably request.
(b) Notwithstanding the foregoing provisions of this section 8.10 or
the provisions of section 8.11, the Borrower shall not, unless an Event of
Default shall have occurred and be continuing, be required to cause a Foreign
Subsidiary to join in the Subsidiary Guaranty or to cause the stock of any
Foreign Subsidiary to be pledged pursuant to the Pledge Agreement if (i) to do
so would subject the Borrower to liability for additional United States income
taxes by virtue of section 956 of the Code in an amount the Borrower considers
material, and (ii) the Borrower provides the Administrative Agent, within the
30-day period referred to in section 8.10(a) or section 8.11(a), as applicable,
with documentation, including computations prepared by the Borrower's internal
tax officer, its independent accountants or tax counsel, acceptable to the
Required Lenders, in support thereof.
8.11. PLEDGE OF ADDITIONAL STOCK; RELEASE OF COLLATERAL. (a) In the
event that at any time after the Closing Date the Borrower has any direct or
indirect Subsidiary the stock in which owned by the Borrower or another
Subsidiary is not at the time pledged to the Collateral Agent pursuant to the
Pledge Agreement, the Borrower may, but shall not be obligated to, elect to (i)
cause such stock to be so pledged by delivering the certificates therefor to the
Collateral Agent, duly indorsed in blank or accompanied by separate stock powers
duly executed in blank, (ii) deliver or cause to be delivered to the Collateral
Agent an amendment or supplement to the Pledge Agreement signed by the pledging
Credit Party providing for such pledge, in sufficient quantities for the
Lenders, and (ii) if such pledging Credit Party is not already a Credit Party,
resolutions of the Board of Directors of such pledging Credit Party, certified
by the Secretary or an Assistant Secretary of such pledging Credit Party as duly
adopted and in full force and effect, authorizing the execution and delivery of
such amendment or supplement, or if such pledging Credit Party is not a
corporation, such other evidence of the authority of such pledging Credit Party
to execute such amendment or supplement as the Collateral Agent may reasonably
request.
(b) If no default under section 10.1(a) or Event of Default shall have
occurred and be continuing, the Borrower shall be entitled to obtain a complete
release of all Collateral covered by the Pledge Agreement
50
56
and a termination of the Pledge Agreement upon written notice to the
Administrative Agent, and the Administrative Agent and the Collateral Agent
shall in such circumstances take all such reasonable actions as may be necessary
to effect such release and termination.
8.12. MOST FAVORED COVENANT STATUS. Should the Borrower at any time
after August 1, 1997, issue any unsecured Indebtedness, or guarantee any secured
or unsecured Indebtedness, denominated in U.S. dollars or any other currency,
for money borrowed or represented by bonds, notes, debentures or similar
securities in an aggregate amount exceeding $5,000,000, to any lender or group
of lenders acting in concert with one another, or one or more institutional
investors, pursuant to a loan agreement, credit agreement, note purchase
agreement, indenture, guaranty or other similar instrument, which agreement,
indenture, guaranty or instrument, includes affirmative or negative financial
covenants (or any events of default or other type of restriction which would
have the practical effect of any affirmative or negative financial covenant,
including, without limitation, any "put" or mandatory prepayment of such
Indebtedness upon the occurrence of specified financial ratios or other
specified financial measurements) which are applicable to the Borrower and/or
any of its Subsidiaries, other than those set forth herein or in any of the
other Credit Documents, the Borrower shall promptly so notify the Administrative
Agent and the Lenders and, if the Administrative Agent shall so request by
written notice to the Borrower (after a determination has been made by the
Required Lenders that any of the above-referenced documents or instruments
contain any such provisions, which either individually or in the aggregate, are
more favorable to the applicable creditors of the Borrower than any of the
particular provisions set forth herein), the Borrower, the Administrative Agent
and the Required Lenders shall promptly amend this Agreement to incorporate some
or all of such provisions, in the discretion of the Administrative Agent and the
Required Lenders, into this Agreement and, to the extent necessary and
reasonably desirable to the Administrative Agent and the Required Lenders, into
any of the other Credit Documents, all at the election of the Administrative
Agent and the Required Lenders. If after any such provisions have been so
incorporated into any of the Credit Documents, the entire amount of the other
Indebtedness from which such provisions were incorporated is repaid, redeemed,
prepaid or otherwise retired, the Lenders will promptly upon request of the
Borrower cause the Credit Documents to be amended so as to eliminate such
provisions which had been previously incorporated therein.
8.13. SENIOR DEBT. The Borrower will at all times ensure that (a) the
claims of the Lenders in respect of the Obligations of the Borrower will not be
subordinate to, and will in all respects at least rank PARI PASSU with, the
claims of every other senior unsecured creditor of the Borrower, and (b) any
Indebtedness subordinated in any manner to the claims of any other senior
unsecured creditor of the Borrower will be subordinated in like manner to such
claims of the Lenders.
SECTION 9. NEGATIVE COVENANTS.
The Borrower hereby covenants and agrees that on the Effective Date and
thereafter for so long as this Agreement is in effect and until such time as the
Total Commitment has been terminated, no Notes remain outstanding and the Loans,
together with interest, Fees and all other Obligations incurred hereunder are
paid in full:
9.1. CHANGES IN BUSINESS. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries, would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries
on the date hereof.
9.2. CONSOLIDATION, MERGER OR SALE OF ASSETS, ETC. The Borrower will
not, and will not permit any Subsidiary to, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation or sell or
otherwise dispose of any of its property or assets (but excluding any sale or
disposition of obsolete or excess furniture, fixtures or equipment or excess
vacant land in the ordinary course of business), or purchase, lease or otherwise
acquire (in one transaction or a series of related transactions) all or any part
of the property or assets of any person (excluding any purchases, leases or
other acquisitions of property or assets in, and for
51
57
use in, the ordinary course of business) or agree to do any of the foregoing at
any future time, EXCEPT that the following shall be permitted:
(A) CAPITAL EXPENDITURES: Consolidated Capital Expenditures;
(B) PERMITTED INVESTMENTS: the investments permitted pursuant
to section 9.5;
(C) CERTAIN INTERCOMPANY MERGERS, ETC.: if no Default or Event
of Default shall have occurred and be continuing or would result
therefrom, (i) the merger, consolidation or amalgamation of any
Wholly-Owned Subsidiary with or into the Borrower or another
Wholly-Owned Subsidiary, so long as in any merger, consolidation or
amalgamation involving the Borrower it is the surviving or continuing
or resulting corporation, or the liquidation or dissolution of any
Subsidiary, or (ii) the transfer or other disposition of any property
by the Borrower to any Wholly-Owned Subsidiary or by any Wholly- Owned
Subsidiary to the Borrower or any other Wholly-Owned Subsidiary of the
Borrower;
(D) PERMITTED ACQUISITIONS: if no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the
Borrower or any Subsidiary may make Permitted Acquisitions, PROVIDED
that (i) at least five Business Days prior to the date of any such
Permitted Acquisition which involves consideration (including the
amount of any assumed Indebtedness and (without duplication) any
outstanding Indebtedness of any person which becomes a Subsidiary as a
result of such Permitted Acquisition) of $20,000,000 or more, the
Borrower shall have delivered to the Administrative Agent an officer's
certificate executed on behalf of the Borrower by an Authorized Officer
of the Borrower, which certificate shall (A) contain the date such
Permitted Acquisition is scheduled to be consummated, (B) contain the
estimated purchase price of such Permitted Acquisition, (C) contain a
description of the property and/or assets acquired in connection with
such Permitted Acquisition, (D) demonstrate that at the time of making
any such Permitted Acquisition the covenants contained in sections 9.6
and 9.7 shall be complied with on a PRO FORMA basis as if the
properties and/or assets so acquired had been owned by the Borrower,
and the Indebtedness assumed and/or incurred to acquire and/or finance
same has been outstanding, for the 12 month period immediately
preceding such acquisition (without giving effect to any credit for
unobtained or unrealized gains or any adjustments to overhead in
connection with any such Permitted Acquisition), and (E) if requested
by the Administrative Agent, attach thereto a true and correct copy of
the then proposed purchase agreement, merger agreement or similar
agreement, partnership agreement and/or other contract entered into in
connection with such Permitted Acquisition, and the most recent
financial statements for the person or business unit which is the
subject of such Permitted Acquisition;
(E) PERMITTED DISPOSITIONS: if no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the
Borrower or any of its Subsidiaries may (i) sell any property, land or
building (including any related receivables or other intangible assets)
to any person which is not a Subsidiary of the Borrower, or (ii) sell
the entire capital stock (or other equity interests) and Indebtedness
of any Subsidiary owned by the Borrower or any other Subsidiary to any
person which is not a Subsidiary of the Borrower, or (iii) permit any
Subsidiary to be merged or consolidated with a person which is not an
Affiliate of the Borrower, or (iv) consummate any other Asset Sale with
a person who is not a Subsidiary of the Borrower; PROVIDED that (A) the
consideration for such transaction represents fair value (as determined
by management of the Borrower), and at least 75% of such consideration
consists of cash, (B) in the case of any such transaction involving
consideration in excess of $5,000,000, at least five Business Days
prior to the date of completion of such transaction the Borrower shall
have delivered to the Administrative Agent an officer's certificate
executed on behalf of the Borrower by an Authorized Officer of the
Borrower, which certificate shall contain a description of the proposed
transaction, the date such transaction is scheduled to be consummated,
the estimated purchase price or other consideration for such
transaction, financial information pertaining to compliance with the
preceding clause (A), and which shall (if requested by the
Administrative Agent) include a certified copy of the draft or
definitive documentation pertaining thereto, and (C)
52
58
contemporaneously therewith, the Borrower prepays Loans as and to the
extent contemplated by section 5.2(d);
(F) CONTRIBUTIONS TO JOINT VENTURES, ETC.: if no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, the Borrower or any of its Subsidiaries may contribute
assets to joint ventures and other persons in accordance with section
9.5(p); and
(G) LEASES: the Borrower or any of its Subsidiaries may enter
into leases of property or assets not constituting Permitted
Acquisitions in the ordinary course of business not otherwise in
violation of this Agreement.
To the extent (i) any Collateral is sold, transferred or disposed of as
permitted by this section 9.2, or (ii) the Required Lenders (or all of the
Lenders if required by section 13.12) waive the provisions of this section 9.2
with respect to the sale, transfer or other disposition of any Collateral, (a)
such Collateral shall be sold, transferred or disposed of free and clear of the
Liens created by the respective Security Documents; (b) if such Collateral
includes all of the capital stock of a Subsidiary which is a party to the
Subsidiary Guaranty or other Security Document, such capital stock shall be
released from the Pledge Agreement and such Subsidiary shall be released from
the Subsidiary Guaranty; and (c) the Administrative Agent and the Collateral
Agent shall be authorized to take actions deemed appropriate by them in order to
effectuate the foregoing.
9.3. LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with or without
recourse to the Borrower or any of its Subsidiaries, other than for purposes of
collection of delinquent accounts in the ordinary course of business) or assign
any right to receive income, or file or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute, EXCEPT that the foregoing restrictions shall not
apply to:
(a) Liens for taxes not yet delinquent or Liens for taxes
being contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgment of the management of the
Borrower) have been established;
(b) Liens in respect of property or assets imposed by law
which were incurred in the ordinary course of business, such as
carriers', warehousemen's, materialmen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business, which do not
in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of the Borrower or any Subsidiary;
(c) Liens created by this Agreement or the other Credit
Documents;
(d) Liens (i) in existence on the Closing Date which are
listed, and the Indebtedness secured thereby and the property subject
thereto on the Closing Date described, in Annex IV, or (ii) arising out
of the refinancing, extension, renewal or refunding of any Indebtedness
secured by any such Liens, PROVIDED that the principal amount of such
Indebtedness is not increased and such Indebtedness is not secured by
any additional assets;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under section
10.1(g);
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; and mechanic's Liens, carrier's Liens, and other Liens to
secure the
53
59
performance of tenders, statutory obligations, contract bids,
government contracts, performance and return-of-money bonds and other
similar obligations, incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed
money), whether pursuant to statutory requirements, common law or
consensual arrangements;
(g) Leases or subleases granted to others not interfering in
any material respect with the business of the Borrower or any of its
Subsidiaries and any interest or title of a lessor under any lease not
in violation of this Agreement;
(h) easements, rights-of-way, zoning or deed restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries
considered as an entirety;
(i) Liens arising from financing statements regarding property
subject to leases not in violation of the requirements of this
Agreement, PROVIDED that such Liens are only in respect of the property
subject to, and secure only, the respective lease (and any other lease
with the same or an affiliated lessor); and
(j) Liens which
(i) are placed upon equipment or machinery used in
the ordinary course of business of the Borrower or any
Subsidiary at the time of (or within 180 days after) the
acquisition thereof by the Borrower or any such Subsidiary to
secure Indebtedness incurred to pay or finance all or a
portion of the purchase price thereof, PROVIDED that the Lien
encumbering the equipment or machinery so acquired does not
encumber any other asset of the Borrower or any such
Subsidiary; or
(ii) are existing on property or other assets at the
time acquired by the Borrower or any Subsidiary or on assets
of a person at the time such person first becomes a Subsidiary
of the Borrower; PROVIDED that (A) any such Liens were not
created at the time of or in contemplation of the acquisition
of such assets or person by the Borrower or any of its
Subsidiaries; (B) in the case of any such acquisition of a
person, any such Lien attaches only to the property and assets
of such person; and (C) in the case of any such acquisition of
property or assets by the Borrower or any Subsidiary, any such
Lien attaches only to the property and assets so acquired and
not to any other property or assets of the Borrower or any
Subsidiary;
PROVIDED that (1) the Indebtedness secured by any such Lien does not
exceed 100% of the fair market value of the property and assets to
which such Lien attaches, determined at the time of the acquisition of
such property or asset or the time at which such person becomes a
Subsidiary of the Borrower (except in the circumstances described in
clause (ii) above to the extent such Liens constituted customary
purchase money Liens at the time of incurrence and were entered into in
the ordinary course of business), and (2) the Indebtedness secured
thereby is permitted by section 9.4(c); and
9.4. INDEBTEDNESS. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness of the Borrower or any of its Subsidiaries, EXCEPT:
(a) Indebtedness incurred under this Agreement and the other
Credit Documents;
(b) Indebtedness of the Borrower or any Subsidiary in respect
of Capital Leases; PROVIDED that (i) the aggregate Capitalized Lease
Obligations of the Borrower and its Subsidiaries, plus the aggregate
outstanding principal amount of Indebtedness permitted under clause (c)
below, shall not exceed $10,000,000 in the aggregate at any time
outstanding, and (ii) at the time of any incurrence
54
60
thereof after the date hereof, and after giving effect thereto, no
Event of Default shall have occurred and be continuing or would result
therefrom;
(c) Indebtedness of the Borrower or any Subsidiary subject to
Liens permitted by section 9.3(j), including and any guaranty by the
Borrower of any such Indebtedness; PROVIDED that (i) the aggregate
principal amount of such Indebtedness shall not exceed $5,000,000 in
the aggregate at any time outstanding, and (ii) at the time of any
incurrence thereof after the date hereof, and after giving effect
thereto, no Event of Default shall have occurred and be continuing or
would result therefrom;
(d) Existing Indebtedness, to the extent not otherwise
permitted pursuant to the foregoing clauses; and any refinancing,
extension, renewal or refunding of any such Existing Indebtedness not
involving an increase in the principal amount thereof or a reduction of
more than 10% in the remaining weighted average life to maturity
thereof (computed in accordance with standard financial practice);
(e) Indebtedness of the Borrower or any Subsidiary under Hedge
Agreements entered into in the ordinary course of business;
(f) Indebtedness of the Borrower to any of its Subsidiaries,
and Indebtedness of any of the Borrower's Subsidiaries to the Borrower
or to another Subsidiary of the Borrower, in each case to the extent
permitted under section 9.5;
(g) Guaranty Obligations permitted under section 9.5;
(h) the Subordinated Indebtedness evidenced by the Convertible
Subordinated Debentures due 2004, PROVIDED that the Borrower shall have
successfully completed within 90 days following the Effective Date the
sale of the Convertible Subordinated Debentures due 2004 to the initial
purchasers as contemplated by the Preliminary Offering Memorandum dated
July 17, 1997, in the aggregate principal amount described therein or
in a greater aggregate principal amount;
(i) any refinancing, extension, renewal or refunding of any
Subordinated Indebtedness permitted by the foregoing clause (h) not
involving an increase in the principal amount thereof, a reduction of
more than 10% in the remaining weighted average life to maturity
thereof (computed in accordance with standard financial practice), or
any changes in the terms of subordination applicable thereto which is
adverse to the interests of the Lenders;
(j) the subordinated guaranties of Subsidiaries of the
Borrower with respect to the Subordinated Indebtedness referred to in
clauses (h) and (i) above, PROVIDED the terms of such subordination are
substantially the same as contained in the subordinated guaranties
originally issued in support of the Convertible Subordinated Debentures
due 2004 as contemplated by the Preliminary Offering Memorandum dated
July 17, 1997; and
(k) additional unsecured Indebtedness of the Borrower not in
excess of $25,000,000 aggregate principal amount outstanding at any
time, to the extent not otherwise permitted pursuant to the foregoing
clauses, PROVIDED that at the time of incurrence thereof, and after
giving effect thereto, (i) the Borrower will be in compliance with
section 9.6, and (ii) no Event of Default shall have occurred and be
continuing or would result therefrom.
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS. The
Borrower will not, and will not permit any of its Subsidiaries to, (1) lend
money or make advances to any person, (2) purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, or other investment in, any person, (3) create, acquire or hold
any Subsidiary, (4) be or become a party to any joint venture or partnership, or
(5) be or become obligated under any Guaranty Obligations (other than those
created in favor of the Lenders pursuant to the Credit Documents), EXCEPT:
55
61
(a) the Borrower or any of its Subsidiaries may invest in cash
and Cash Equivalents;
(b) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the normal course
of business;
(c) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(d) investments acquired by the Borrower or any of its
Subsidiaries (i) in exchange for any other investment held by the
Borrower or any such Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other investment, or (ii) as a result of a foreclosure by the
Borrower or any of its Subsidiaries with respect to any secured
investment or other transfer of title with respect to any secured
investment in default;
(e) loans and advances to employees for business-related
travel expenses, moving expenses, costs of replacement homes and other
similar expenses, in each case incurred in the ordinary course of
business, shall be permitted;
(f) the Borrower may make Permitted Acquisitions in accordance
with section 9.2((d);
(g) investments in the capital of any Wholly-Owned Subsidiary
which is not a Foreign Subsidiary;
(h) to the extent not permitted by the foregoing clauses,
existing investments in any Subsidiaries (and any increases thereof
attributable to increases in retained earnings);
(i) to the extent not permitted by the foregoing clauses, the
existing loans, advances, investments and guarantees described on Annex
V hereto;
(j) any unsecured guaranty by the Borrower of any Indebtedness
of a Subsidiary permitted by section 9.4, and any guaranty by any
Subsidiary described in section 9.4;
(k) investments of the Borrower and its Subsidiaries in Hedge
Agreements;
(l) loans and advances by any Subsidiary of the Borrower to
the Borrower, PROVIDED that the Indebtedness represented thereby
constitutes Subordinated Indebtedness;
(m) loans and advances by the Borrower or by any Subsidiary of
the Borrower to, or other investments in, any Subsidiary of the
Borrower which is (i) a Subsidiary Guarantor, (ii) a Wholly-Owned
Subsidiary, and (iii) not a Foreign Subsidiary;
(n) loans and advances by any Subsidiary of the Borrower which
is not a Subsidiary Guarantor to, or other investments by any such
Subsidiary in, any other Subsidiary of the Borrower which is a
Wholly-Owned Subsidiary;
(o) Guaranty Obligations, not otherwise permitted by the
foregoing clauses, of (i) the Borrower or any Subsidiary in respect of
leases of the Borrower or any Subsidiary the entry into which is not
prohibited by this Agreement, (ii) the Borrower or any Subsidiary in
respect of any other person (other than in respect of (x) Indebtedness
for borrowed money or represented by bonds, notes, debentures or
similar securities, or (y) Indebtedness constituting Capital Leases)
arising as a matter of applicable law because the Borrower or such
Subsidiary is or is deemed to be a general partner of such other
person, or (iii) the Borrower or any Subsidiary in respect of any other
person (other than in respect of (x) Indebtedness for borrowed money or
represented by bonds, notes, debentures or similar securities, or (y)
Indebtedness constituting Capital Leases) arising in the ordinary
course of business;
56
62
(p) any other loans, advances, investments (whether in the
form of cash or contribution of property, and if in the form of a
contribution of property, such property shall be valued for purposes of
this clause (p) at the fair value thereof as reasonably determined by
the Borrower) and Guaranty Obligations, including, without limitation,
in or to or for the benefit of, Subsidiaries, joint ventures, or other
persons, not otherwise permitted by the foregoing clauses, made after
March 31, 1997 (such loans, advances and investments, collectively,
"BASKET INVESTMENTS", and such Guaranty Obligations, collectively
"BASKET GUARANTEES") described below: (i) if no Event of Default shall
have occurred and be continuing, or would result therefrom, (A) Basket
Investments of up to an aggregate amount not in excess of 15% of the
Borrower's Consolidated Net Worth as of the end of its most recently
completed fiscal year prior thereto for which financial statements have
been delivered hereunder, taking into account the repayment of any
loans or advances comprising such Basket Investments, and (B)
additional Basket Investments made out of the proceeds of the issue and
sale of the Convertible Subordinated Debentures due 2004, or the
identifiable cash or Cash Equivalents in which such proceeds have been
temporarily invested, shall be permitted to be made, in each case in
persons whose principal business is related or complementary to, the
businesses of the Borrower and its Subsidiaries, and (ii) if no Event
of Default shall have occurred and be continuing, or would result
therefrom, Basket Guarantees covering up to $15,000,000 aggregate
principal amount of Indebtedness outstanding at any time, shall be
permitted to be incurred.
9.6. TOTAL NET INDEBTEDNESS/CONSOLIDATED EBITDA RATIO. The Borrower
will not at any time permit the ratio of (i) the amount of Total Net
Indebtedness at such time to (ii) Consolidated EBITDA for any Testing Period, to
exceed 4.50 to 1.00.
9.7. TOTAL SENIOR INDEBTEDNESS/CONSOLIDATED EBITDA RATIO. The Borrower
will not at any time permit the ratio of (i) the amount of Total Senior
Indebtedness at such time to (ii) Consolidated EBITDA for any Testing Period, to
exceed 3.25 to 1.00.
9.8. INTEREST COVERAGE RATIO. The Borrower will not permit its Interest
Coverage Ratio for any Testing Period to be less than 2.50 to 1.00.
9.9. MINIMUM CONSOLIDATED NET WORTH. The Borrower will not permit its
Consolidated Net Worth at any time to be less than $222,300,000, EXCEPT that (i)
effective as of the end of the Borrower's fiscal quarter ended June 30, 1997,
and as of the end of each fiscal quarter thereafter, the foregoing amount (as it
may from time to time be increased as herein provided), shall be increased by
50% of the consolidated net income of the Borrower and its Subsidiaries for the
fiscal quarter ended on such date, if any, without deduction for minority
interests, as determined in conformity with GAAP (there being no reduction in
the case of any such consolidated net income which reflects a deficit), and (ii)
the foregoing amount (as it may from time to time be increased as herein
provided), shall be increased by (A) an amount equal to 100% of the cash
proceeds (net of underwriting discounts and commissions and other customary fees
and costs associated therewith) from any sale or issuance of equity by the
Borrower after the Closing Date (other than any sale or issuance to management
or employees pursuant to employee benefit plans of general application), plus
(B) the principal amount of any Indebtedness which after the Effective Date is
converted or exchanged into equity securities of the Borrower.
9.10. PREPAYMENTS AND REFINANCINGS OF SUBORDINATED DEBT, ETC. The
Borrower will not, and will not permit any of its Subsidiaries to, make (or give
any notice in respect thereof) any voluntary or optional payment or prepayment
or redemption or acquisition for value of (including, without limitation, by way
of depositing with the trustee with respect thereto money or securities before
due for the purpose of paying when due) or exchange of, or refinance or refund,
any Subordinated Indebtedness of the Borrower; PROVIDED that the Borrower may
refinance or refund any such Subordinated Indebtedness in accordance with the
applicable requirements of section 9.4 hereof.
9.11. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction or series of transactions
with any Affiliate (other than, in the case of the Borrower, any Subsidiary, and
in the case of a Subsidiary, the Borrower or another Subsidiary) other than in
the ordinary
57
63
course of business of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than would obtain in a
comparable arm's-length transaction with a person other than an Affiliate,
EXCEPT (i) loans, advances and investments permitted by section 9.5, (ii) sales
of goods to an Affiliate for use or distribution outside the United States which
in the good faith judgment of the Borrower complies with any applicable legal
requirements of the Code, or (iii) agreements and transactions with and payments
to officers, directors and shareholders which are either (A) entered into in the
ordinary course of business and not prohibited by any of the provisions of this
Agreement, or (B) entered into outside the ordinary course of business, approved
by the directors or shareholders of the Borrower, and not prohibited by any of
the provisions of this Agreement.
9.12. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist or become effective, any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or suffer to exist
any Lien upon any of its property or assets as security for Indebtedness, or (b)
the ability of any such Subsidiary to pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits owned by the Borrower or any Subsidiary of the Borrower, or pay any
Indebtedness owed to the Borrower or a Subsidiary of the Borrower, or to make
loans or advances to the Borrower or any of the Borrower's other Subsidiaries,
or transfer any of its property or assets to the Borrower or any of the
Borrower's other Subsidiaries, EXCEPT for such restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest, (iv) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course of
business, (v) customary provisions restricting the transfer of assets subject to
Liens permitted under section 9.3(j), (vi) restrictions contained in the
Existing Indebtedness Agreements as in effect on the Effective Date and
customary restrictions affecting only a Subsidiary of the Borrower under any
agreement or instrument governing any of the Indebtedness of a Subsidiary
permitted pursuant to 9.4, (vii) any document relating to Indebtedness secured
by a Lien permitted by section 9.3, insofar as the provisions thereof limit
grants of junior liens on the assets securing such Indebtedness, and (viii) any
operating lease or Capital Lease, insofar as the provisions thereof limit grants
of a security interest in, or other assignments of, the related leasehold
interest to any other person.
9.13. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Borrower will
not, nor will it permit any Subsidiary to, enter into any Sale and Lease-Back
Transaction involving any individual property (or related group of properties as
part of the same Sale and Lease-Back Transaction) having a Value over $2,000,000
unless either (a) the Borrower or such Subsidiary would be entitled to incur
Indebtedness secured by a Lien on such property pursuant to section 9.4(c), or
(b) the Borrower shall prepay Loans, and to the extent Loans are not so prepaid,
shall voluntarily permanently reduce the Unutilized Total Commitment, by an
amount at least equal to the Value of such Sale and Lease-Back Transaction.
9.14. PLAN TERMINATIONS, MINIMUM FUNDING, ETC. The Borrower will not,
and will not permit any ERISA Affiliate to, (i) terminate any Plan or plans so
as to result in liability of the Borrower or any ERISA Affiliate to the PBGC in
excess of $1,000,000 in the aggregate, (ii) permit to exist one or more events
or conditions which reasonably present a material risk of the termination by the
PBGC of any Plan or Plans with respect to which the Borrower or any ERISA
Affiliate would, in the event of such termination, incur liability to the PBGC
in excess of $1,000,000 in the aggregate, or (iii) fail to comply with the
minimum funding standards of ERISA and the Code with respect to any Plan.
58
64
SECTION 10. EVENTS OF DEFAULT.
10.1. EVENTS OF DEFAULT. Upon the occurrence of any of the following
specified events (each an "EVENT OF DEFAULT"):
(A) PAYMENTS: the Borrower shall (i) default in the payment
when due of any principal of the General Revolving Loans; (ii) default,
and such default shall continue for three or more Business Days, in the
payment when due of any principal of the Swing Line Revolving Loans;
(iii) default, and such default shall continue for three or more
Business Days, in the payment when due of any reimbursement obligation
in respect of any Unpaid Drawing; or (iv) default, and such default
shall continue for five or more Business Days, in the payment when due
of any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
(B) REPRESENTATIONS, ETC.: any representation, warranty or
statement made by the Borrower herein or in any other Credit Document
or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
(C) CERTAIN NEGATIVE COVENANTS: the Borrower shall (i) default
in the due performance or observance by it of any term, covenant or
agreement contained in sections 9.6 through 9.9, inclusive, or section
9.13, of this Agreement; or (ii) default, and such default shall
continue for five or more Business Days after the Borrower shall first
have obtained actual knowledge thereof or the Administrative Agent or
any Lender shall have notified the Borrower thereof in writing,
whichever shall first occur, in the due performance or observance by it
of any other term, covenant or agreement contained in sections 9.2
through 9.5, inclusive, of this Agreement; or
(D) OTHER COVENANTS: the Borrower shall default in the due
performance or observance by it of any term, covenant or agreement
contained in this Agreement or any other Credit Document, other than
those referred to in section 10.1(a) or (b) or (c) above, and such
default shall continue unremedied for a period of at least 30 days
after notice by the Administrative Agent or the Required Lenders; or
(E) DEFAULT UNDER OTHER AGREEMENTS: the Borrower or any of its
Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) owed to any Lender, or having
an unpaid principal amount of $1,000,000 or greater, and such default
shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness, or (ii)
default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto (and all grace
periods applicable to such observance, performance or condition shall
have expired), or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause any such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable, or shall be required to be prepaid
(other than by a regularly scheduled required prepayment or redemption,
prior to the stated maturity thereof); or
(F) OTHER CREDIT DOCUMENTS: the Subsidiary Guaranty or any
Security Document (once executed and delivered) shall cease for any
reason (other than termination in accordance with its terms) to be in
full force and effect; or any Credit Party shall default in any payment
obligation thereunder; or any Credit Party shall default in any
material respect in the due performance and observance of any other
obligation thereunder and such default shall continue unremedied for a
period of at least 30 days after notice by the Administrative Agent or
the Required Lenders; or any Credit Party shall (or seek to) disaffirm
or otherwise limit its obligations thereunder otherwise than in strict
compliance with the terms thereof; or
59
65
(G) JUDGMENTS: one or more judgments or decrees shall be
entered against the Borrower and/or any of its Subsidiaries involving a
liability (exclusive of the amount thereof covered by insurance as to
which the carrier has adequate claims paying ability and has not
reserved its rights) of $5,000,000 or more in the aggregate for all
such judgments and decrees for the Borrower and its Subsidiaries) and
any such judgments or decrees shall not have been vacated, discharged
or stayed or bonded pending appeal within 30 days from the entry
thereof; or
(H) BANKRUPTCY, ETC.: the Borrower or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "BANKRUPTCY CODE");
or an involuntary case is commenced against the Borrower or any of its
Material Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed
for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Material Subsidiaries; or the Borrower or
any of its Material Subsidiaries commences (including by way of
applying for or consenting to the appointment of, or the taking of
possession by, a rehabilitator, receiver, custodian, trustee,
conservator or liquidator (collectively, a "CONSERVATOR") of itself or
all or any substantial portion of its property) any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency, liquidation, rehabilitation,
conservatorship or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Material
Subsidiaries; or any such proceeding is commenced against the Borrower
or any of its Material Subsidiaries to the extent such proceeding is
consented by such person or remains undismissed for a period of 60
days; or the Borrower or any of its Material Subsidiaries is
adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or the Borrower
or any of its Material Subsidiaries suffers any appointment of any
conservator or the like for it or any substantial part of its property
which continues undischarged or unstayed for a period of 60 days; or
the Borrower or any of its Material Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate (or similar
organizational) action is taken by the Borrower or any of its Material
Subsidiaries for the purpose of effecting any of the foregoing; or
(I) ERISA: (i) any of the events described in clauses (i)
through (viii) of section 8.1(g) shall have occurred; or (ii) there
shall result from any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk
of incurring a liability; and (iii) any such event or events or any
such lien, security interest or liability, individually, and/or in the
aggregate, has had, or could reasonably be expected to have, a Material
Adverse Effect.
10.2. ACCELERATION, ETC. Upon the occurrence of any Event of Default,
and at any time thereafter, if any Event of Default shall then be continuing,
the Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against the Borrower, except as otherwise
specifically provided for in this Agreement (PROVIDED that, if an Event of
Default specified in section 10.1(h) shall occur with respect to the Borrower,
the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans, all Unpaid
Drawings and all obligations owing hereunder and thereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; and (iv) direct the Borrower to pay (and the Borrower
hereby agrees that on receipt of such notice or upon the occurrence of an Event
of Default with respect to the Borrower under section 10.1(h), it will pay) to
the Administrative Agent an amount of cash equal to the aggregate Stated Amount
of all Letters of Credit then outstanding (such amount to be held as security
after the Borrower's reimbursement obligations in respect thereof).
60
66
10.3. APPLICATION OF LIQUIDATION PROCEEDS. All monies received by the
Administrative Agent or any Lender from the exercise of remedies hereunder or
under the other Credit Documents or under any other documents relating to this
Agreement shall, unless otherwise required by the terms of the other Credit
Documents or by applicable law, be applied as follows:
(I) FIRST, to the payment of all expenses (to the extent not
paid by the Borrower) incurred by the Administrative Agent and the
Lenders in connection with the exercise of such remedies, including,
without limitation, all reasonable costs and expenses of collection,
attorneys' fees, court costs and any foreclosure expenses;
(II) SECOND, to the payment PRO RATA of interest then accrued
on the outstanding Loans;
(III) THIRD, to the payment PRO RATA of any fees then accrued
and payable to the Administrative Agent, any Letter of Credit Issuer or
any Lender under this Agreement in respect of the Loans or the Letter
of Credit Outstandings;
(IV) FOURTH, to the payment PRO RATA of (A) the principal
balance then owing on the outstanding Loans, (B) the amounts then due
under Designated Hedge Agreements to creditors of the Company or any
Subsidiary thereunder, subject to confirmation by the Administrative
Agent of any calculations of termination or other payment amounts being
made in accordance with normal industry practice, and (C) the Stated
Amount of the Letter of Credit Outstandings (to be held and applied by
the Administrative Agent as security for the reimbursement obligations
in respect thereof);
(V) FIFTH, to the payment to the Lenders of any amounts then
accrued and unpaid under sections 2.10, 2.11 and 3.5 hereof, and if
such proceeds are insufficient to pay such amounts in full, to the
payment of such amounts PRO RATA;
(VI) SIXTH, to the payment PRO RATA of all other amounts owed
by the Borrower to the Administrative Agent, to any Letter of Credit
Issuer or any Lender under this Agreement or any other Credit Document,
and to any counterparties under any Designated Hedge Agreements of the
Borrower and its Subsidiaries, and if such proceeds are insufficient to
pay such amounts in full, to the payment of such amounts PRO RATA; and
(VII) FINALLY, any remaining surplus after all of the
Obligations have been paid in full, to the Borrower or to whomsoever
shall be lawfully entitled thereto.
SECTION 11. THE ADMINISTRATIVE AGENT.
11.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints KeyBank as Administrative Agent to act as specified herein and in the
other Credit Documents, and each such Lender hereby irrevocably authorizes
KeyBank as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Credit Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein or in the other
Credit Documents, nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this section 11 are solely for the benefit of the
Administrative Agent, and the Lenders, and the Borrower and its Subsidiaries
shall not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, the
Administrative Agent shall act solely as agent
61
67
of the Lenders and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for the Borrower or any of
its Subsidiaries.
11.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Credit Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by section 11.3.
11.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such person under or in connection with this Agreement (except
for its or such person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or of its Subsidiaries or any
of their respective officers contained in this Agreement, any other Credit
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the Borrower or any Subsidiary of the Borrower or any of their respective
officers to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrower or any of its Subsidiaries. The Administrative Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any Credit
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
11.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message, statement, order or
other document or conversation believed by it, in good faith, to be genuine and
correct and to have been signed, sent or made by the proper person or persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower or any of its Subsidiaries), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Lenders (or
all of the Lenders, as to any matter which, pursuant to section 12.12, can only
be effectuated with the consent of all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.
11.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the 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 Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative 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
Administrative Agent shall have received such directions, the
62
68
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
11.6. NON-RELIANCE. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates have made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent, or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and its Subsidiaries.
The Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, assets, property, financial and other conditions, prospects or
creditworthiness of the Borrower or any of its Subsidiaries which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such ratably according to their
respective General Revolving Loans and Unutilized General Revolving Commitments,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
incurred by or asserted against the Administrative Agent in its capacity as such
in any way relating to or arising out of this Agreement or any other Credit
Document, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing, but
only to the extent that any of the foregoing is not paid by the Borrower,
PROVIDED that no Lender shall be liable to the Administrative Agent for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting solely from the Administrative Agent's gross negligence or
willful misconduct. If any indemnity furnished to the Administrative Agent for
any purpose shall, in the opinion of the Administrative Agent, be insufficient
or become impaired, the Administrative Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this section 11.7 shall
survive the payment of all Obligations.
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
and their Affiliates as though not acting as Administrative Agent hereunder.
With respect to the Loans made by it and all Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
11.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as the Administrative Agent upon 20 days' notice to the Lenders and the
Borrower. The Required Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders subject to prior approval by the Borrower
(such approval not to be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall include such
successor agent effective upon its appointment, and the resigning Administrative
Agent's rights, powers and duties as the Administrative Agent shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement. After the retiring
Administrative
63
69
Agent's resignation hereunder as the Administrative Agent, the provisions of
this section 11 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement.
11.10. OTHER AGENTS. Any Lender identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager or any other
corresponding title, other than "Administrative Agent" and "Collateral Agent",
shall have no right, power, obligation, liability, responsibility or duty under
this Agreement or any other Credit Document except those applicable to all
Lenders as such. Each Lender acknowledges that it has not relied, and will not
rely, on any Lender so identified in deciding to enter into this Agreement or in
taking or not taking any action hereunder.
SECTION 12. MISCELLANEOUS.
12.1. PAYMENT OF EXPENSES ETC. (a) The Borrower will, whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with
the negotiation, preparation, execution and delivery of the Credit Documents and
the documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of Jones, Day, Reavis & Pogue, special counsel to the
Administrative Agent), and of the Administrative Agent and each of the Lenders
in connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Administrative Agent and for each of
the Lenders and any allocated costs of internal counsel for any of the Lenders).
(b) In the event of the bankruptcy, insolvency, rehabilitation or other
similar proceeding in respect of the Borrower or any of its Subsidiaries, the
Borrower will pay all costs of collection and defense, including reasonable
attorneys' fees in connection therewith and in connection with any appellate
proceeding or post-judgment action involved therein, which shall be due and
payable together with all required service or use taxes.
(c) The Borrower will pay and hold each of the Lenders harmless from
and against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes.
(d) The Borrower will indemnify each Lender, its officers, directors,
employees, representatives and agents (collectively, the "INDEMNITEES") from and
hold each of them harmless against any and all losses, liabilities, claims,
damages or expenses reasonably incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of
(i) any investigation, litigation or other proceeding (whether
or not any Lender is a party thereto) related to the entering into
and/or performance of any Credit Document or the use of the proceeds of
any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, other than any such investigation,
litigation or proceeding arising out of transactions solely between any
of the Lenders or the Administrative Agent, transactions solely
involving the assignment by a Lender of all or a portion of its Loans
and Commitment, or the granting of participations therein, as provided
in this Agreement, or arising solely out of any examination of a Lender
by any regulatory authority having jurisdiction over it, or
(ii) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface
of any Real Property owned, leased or at any time operated by the
Borrower or any of its Subsidiaries, the release, generation, storage,
transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by the Borrower or any of
its Subsidiaries, if the Borrower or any such Subsidiary could have or
is alleged to have any responsibility in respect thereof, the
non-compliance of any Real Property with foreign, federal, state
64
70
and local laws, regulations and ordinances (including applicable
permits thereunder) applicable to any Real Property, or any
Environmental Claim asserted against the Borrower or any of its
Subsidiaries, in respect of any Real Property owned, leased or at any
time operated by the Borrower or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the person to be indemnified or of any other
Indemnitee who is such person or an Affiliate of such person). To the extent
that the undertaking to indemnify, pay or hold harmless any person set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.2. RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Lender (including, without limitation, by
branches and agencies of such Lender wherever located) to or for the credit or
the account of the Borrower against and on account of the Obligations and
liabilities of the Borrower to such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations the Borrower purchased by such Lender pursuant to section 12.4(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not
such Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
12.3. NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to the
Borrower, at Suite 220, 3201 Enterprise Parkway, Beachwood, Ohio 44122,
attention: Chief Financial Officer (facsimile: (216) 464-8376); if to any
Lender at its address specified for such Lender on Annex I hereto; if to the
Administrative Agent, at its Notice Address; or at such other address as shall
be designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, and shall be effective when
received.
12.4. BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, PROVIDED that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of all the Lenders. Each Lender may at any time grant participations in
any of its rights hereunder or under any of the Notes to (x) another Lender that
is not a Defaulting Lender or to an Affiliate of such Lender which is a
commercial bank, financial institution or other "accredited investor" (as
defined in SEC Regulation D), and (y) one or more Eligible Transferees, PROVIDED
that in the case of any such participation, (i) the participant shall not have
any rights under this Agreement or any of the other Credit Documents, including
rights of consent, approval or waiver (the participant's rights against such
Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto), (ii) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment hereunder) shall remain unchanged, (iii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iv) such Lender shall remain the holder of any Note for all
purposes of this Agreement and (v) the Borrower, the Administrative Agent, and
the other Lenders shall continue to deal solely and directly with the selling
Lender in connection with such Lender's rights and obligations under this
Agreement, and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation, except that the participant
shall be entitled to the benefits of sections 2.10 and 2.11 of this Agreement to
the extent that such Lender would be entitled to such benefits if the
participation had not been entered into or sold, and,
65
71
PROVIDED FURTHER, that no Lender shall transfer, grant or sell any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (w) extend the final scheduled maturity of the Loans
in which such participant is participating (it being understood that any waiver
of the making of, or the application of any amortization payment or other
prepayment or the method of any application of any prepayment to the
amortization of the Loans shall not constitute an extension of the final
maturity date thereof), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of any mandatory prepayment
or a mandatory reduction in the Total Commitment, or a mandatory prepayment,
shall not constitute a change in the terms of any Commitment), (x) release any
Credit Party from its obligations under the Subsidiary Guaranty except strictly
in accordance with the terms hereof or thereof, (y) release all or substantially
all of the Collateral except strictly in accordance with the terms hereof, or
(z) consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may assign all or a
fixed portion of all of its Loans and/or Commitments, and its rights and
obligations hereunder, which assignment does not have to be PRO RATA among the
Facilities, to another Lender that is not a Defaulting Lender, or to an
Affiliate of any Lender (including itself) which is not a Defaulting Lender and
which is a commercial bank, financial institution or other "accredited investor"
(as defined in SEC Regulation D), and (y) any Lender may assign all, or if less
than all, a PRO RATA fixed portion, equal to at least $10,000,000 in the case of
General Revolving Loans and/or General Revolving Commitments, in the aggregate
for the assigning Lender or assigning Lenders, of all its Loans and/or
Commitments and its rights and obligations hereunder, which assignment does not
have to be PRO RATA among the Facilities, to one or more Eligible Transferees,
each of which assignees shall become a party to this Agreement as a Lender by
execution of an Assignment Agreement, PROVIDED that, (i) in the case of any
assignment of a portion of the General Revolving Loans and/or General Revolving
Commitments of a Lender, such Lender shall retain a minimum fixed portion
thereof equal to at least $10,000,000, (ii) at the time of any such assignment
Annex I shall be deemed modified to reflect the Commitments of such new Lender
and of the existing Lenders, (iii) upon surrender of the old Notes, new Notes
will be issued, at the Borrower's expense, to such new Lender and to the
assigning Lender, such new Notes to be in conformity with the requirements of
section 2.6 (with appropriate modifications) to the extent needed to reflect the
revised Commitments, (iv) in the case of clause (y) only, the consent of the
Administrative Agent and each Letter of Credit Issuer shall be required in
connection with any such assignment (which consent shall not be unreasonably
withheld or delayed), and (v) the Administrative Agent shall receive at the time
of each such assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $2,500 and, PROVIDED FURTHER, that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Lender Register maintained by it as provided herein.
To the extent of any assignment pursuant to this section 12.4(b) the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this section
12.4(b) to a person which is not already a Lender hereunder and which is not a
United States person (as such term is defined in section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 5.4(b)(ii) Certificate)
described in section 5.4(b). To the extent that an assignment of all or any
portion of a Lender's Commitment and related outstanding Obligations pursuant to
this section 12.4(b) would, at the time of such assignment, result in increased
costs under section 2.11 from those being charged by the respective assigning
Lender prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to any other
increased costs of the type described above resulting from changes after the
date of the respective assignment). Nothing in this section 12.4(b) shall
prevent or prohibit any Lender from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank.
(c) Notwithstanding any other provisions of this section 12.4, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such
66
72
transfer, assignment or grant would require the Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any
State.
(d) Each Lender initially party to this Agreement hereby represents,
and each person that became a Lender pursuant to an assignment permitted by this
section 12.4 will, upon its becoming party to this Agreement, represent that it
is a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires loans in the
ordinary course of its business and that it will make or acquire Loans for its
own account in the ordinary course of such business, PROVIDED that subject to
the preceding sections 12.4(a) and (b), the disposition of any promissory notes
or other evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
12.5. NO WAIVER: REMEDIES CUMULATIVE. No failure or delay on the part
of the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower and the Administrative Agent or any Lender shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any Lender would otherwise have. No notice to or demand on the Borrower
in any case shall entitle the Borrower to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
12.6. PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations, it shall distribute such payment to the Lenders
(other than any Lender that has expressly waived in writing its right to receive
its PRO RATA share thereof) PRO RATA based upon their respective shares, if any,
of the Obligations with respect to which such payment was received. As to any
such payment received by the Administrative Agent prior to 1:00 P.M. (local time
at the Payment Office) in funds which are immediately available on such day, the
Administrative Agent will use all reasonable efforts to distribute such payment
in immediately available funds on the same day to the Lenders as aforesaid.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount, PROVIDED that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding sections 13.6(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Lenders which are not Defaulting Lenders, as opposed to
Defaulting Lenders.
12.7. CALCULATIONS: COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); PROVIDED, that if at any time the computations
determining compliance with section 9 utilize accounting principles different
from those utilized in the financial statements furnished to the Lenders, such
computations shall set forth in reasonable detail a description of the
differences and the effect upon such computations.
67
73
(b) All computations of interest on Loans hereunder and all
computations of Facility Fees, Letter of Credit Fees and other Fees hereunder
shall be made on the actual number of days elapsed over a year of 360 days.
12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO. TO THE FULLEST
EXTENT PERMITTED BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE
OF OHIO GOVERNS THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the Courts of the State of Ohio, or of the United States for
the Northern District of Ohio, and, by execution and delivery of this Agreement,
the Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Borrower hereby further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Borrower at its address for notices pursuant to section 12.3,
such service to become effective 30 days after such mailing or at such earlier
time as may be provided under applicable law. Nothing herein shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in section 12.8(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably waives all
right to a trial by jury in any action, proceeding or counterclaim arising out
of or relating to this Agreement, the other Credit Documents or the transactions
contemplated hereby or thereby.
12.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10. EFFECTIVENESS. This Agreement shall become effective on the date
(the "EFFECTIVE DATE") on which the Borrower and each of the Lenders shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at the Notice Office of the
Administrative Agent or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11. HEADINGS DESCRIPTIVE. The headings of the several sections and
other portions 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.
12.12. AMENDMENT OR WAIVER. Neither this Agreement nor any terms hereof
or thereof may be changed, waived, discharged or terminated UNLESS such change,
waiver, discharge or termination is in writing signed by the Borrower and the
Required Lenders, PROVIDED that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender)
affected thereby, (i) extend any interim or final maturity date provided for
herein (including any extension of any interim or final maturity date to be
effected in accordance with section 4.4 hereof) applicable to a Loan or a
Commitment (it
68
74
being understood that any waiver of the making of, or application of any
prepayment of or the method of application of any mandatory prepayment of the
Loans shall not constitute an extension of such final maturity thereof), reduce
the rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates) or
Fees thereon, or reduce the principal amount thereof, or increase the Commitment
of any Lender over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of any mandatory prepayment or a
mandatory reduction in the Total Commitment shall not constitute a change in the
terms of any Commitment of any Lender), (ii) release the Borrower from any
obligations as a guarantor of its Subsidiaries' obligations under any Credit
Document, (iii) release any Credit Party from the Subsidiary Guaranty, except in
connection with a transaction permitted by section 9.2(e), (iv) release all or
substantially all of the Collateral, except strictly in accordance with the
provisions of section 8.11(b), (v) change the definition of the term "Change of
Control" or any of the provisions of section 5.2(e) which are applicable upon a
Change of Control, (vi) change the definition of the term "Permitted
Acquisition" or any of the provisions of section 9.2(d) which are applicable to
Permitted Acquisitions which would have the effect of depriving such Lender of
its rights as contemplated by such definition, (vii) amend, modify or waive any
provision of this section 12.12, or section 11.7, 12.1, 12.4, 12.6 or 12.7(b),
or any other provision of any of the Credit Documents pursuant to which the
consent or approval of all Lenders is by the terms of such provision explicitly
required, (viii) reduce the percentage specified in, or otherwise modify, the
definition of Required Lenders, or (ix) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement. No
provision of section 3 or 11 may be amended without the consent of (x) any
Letter of Credit Issuer adversely affected thereby or (y) the Administrative
Agent, respectively.
12.13. SURVIVAL. All indemnities set forth herein including, without
limitation, in section 2.10, 2.11, 3.5, 11.7 or 12.1 shall survive the execution
and delivery of this Agreement and the making and repayment of Loans.
12.14. DOMICILE OF LOANS. Each Lender may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Lender, PROVIDED that the Borrower shall not be responsible for costs arising
under section 2.10 resulting from any such transfer (other than a transfer
pursuant to section 2.12) to the extent not otherwise applicable to such Lender
prior to such transfer.
12.15. CONFIDENTIALITY. Each Lender shall hold all non-public
information obtained pursuant to the requirements of this Agreement which has
been identified as such by the Borrower in accordance with its customary
procedure for handling confidential information of this nature and in accordance
with safe and sound banking practices and in any event may make disclosure
reasonably required by any BONA FIDE transferee or participant in connection
with the contemplated transfer of any Loans or Commitment or participation
therein (PROVIDED that each such prospective transferee and/or participant shall
execute an agreement for the benefit of the Borrower with such prospective
transferor Lender and/or participant containing provisions substantially
identical to those contained in this section 12.15), and to its auditors,
attorneys or as required or requested by any governmental agency or
representative thereof or pursuant to legal process, PROVIDED that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify the Borrower of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information, and
PROVIDED FURTHER that in no event shall any Lender be obligated or required to
return any materials furnished by or on behalf of the Borrower or any of its
Subsidiaries. The Borrower hereby agrees that the failure of a Lender to comply
with the provisions of this section 12.15 shall not relieve the Borrower of any
of the obligations to such Lender under this Agreement and the other Credit
Documents.
12.16. LENDER REGISTER. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this section
12.16, to retain a copy of each Assignment Agreement delivered to and accepted
by it and to maintain a register (the "LENDER REGISTER") on or in which it will
record the names and addresses of the Lenders, and the Commitments from time to
time of each of the Lenders, the Loans made to the Borrower by each of the
Lenders and each repayment and prepayment in respect of the principal amount of
such Loans of each such Lender. Failure to make any such recordation, or (absent
manifest error) any error in such recordation, shall not affect the Borrower's
obligations in respect of such Loans. With respect to any
69
75
Lender, the transfer of any Commitment of such Lender and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitment shall
not be effective until such transfer is recorded on the Lender Register
maintained by the Administrative Agent with respect to ownership of such
Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Lender Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment Agreement pursuant to section
12.4(b). The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this section 12.16, except to the extent
the same result solely from the Administrative Agent's negligence or willful
misconduct. The Lender Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
12.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS. The
Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letters of
Credit. Neither any Letter of Credit Issuer nor any of its officers or directors
shall be liable or responsible for: (a) the use which may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by a
Letter of Credit Issuer against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, EXCEPT that the Borrower (or a Subsidiary which is the account party
in respect of the Letter of Credit in question) shall have a claim against a
Letter of Credit Issuer, and a Letter of Credit Issuer shall be liable to the
Borrower (or such Subsidiary), to the extent of any direct, but not
consequential, damages suffered by the Borrower (or such Subsidiary) which the
Borrower (or such Subsidiary) proves were caused by (i) such Letter of Credit
Issuer's willful misconduct or gross negligence in determining whether documents
presented under a Letter of Credit comply with the terms of such Letter of
Credit or (ii) such Letter of Credit Issuer's willful failure to make lawful
payment under any Letter of Credit after the presentation to it of documentation
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, a Letter of Credit Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation.
12.18. GENERAL LIMITATION OF LIABILITY. No claim may be made by the
Borrower, any Lender, the Administrative Agent, any Letter of Credit Issuer or
any other person against the Administrative Agent, any Letter of Credit Issuer,
or any other Lender or the Affiliates, directors, officers, employees, attorneys
or agents of any of them for any damages other than actual compensatory damages
in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement or
any of the other Credit Documents, or any act, omission or event occurring in
connection therewith; and each of the Borrower, each Lender, the Administrative
Agent and each Letter of Credit Issuer hereby, to the fullest extent permitted
under applicable law, waives, releases and agrees not to sue or counterclaim
upon any such claim for any special, consequential or punitive damages, whether
or not accrued and whether or not known or suspected to exist in its favor.
12.19. NO DUTY. All attorneys, accountants, appraisers, consultants and
other professional persons (including the firms or other entities on behalf of
which any such person may act) retained by the Administrative Agent or any
Lender with respect to the transactions contemplated by the Credit Documents
shall have the right to act exclusively in the interest of the Administrative
Agent or such Lender, as the case may be, and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to the Borrower, to any of its Subsidiaries, or to any other person,
with respect to any matters within the scope of such representation or related
to their activities in connection with such representation.
70
76
12.20. LENDERS AND AGENT NOT FIDUCIARY TO BORROWER, ETC. The
relationship among the Borrower and its Subsidiaries, on the one hand, and the
Administrative Agent, each Letter of Credit Issuer and the Lenders, on the other
hand, is solely that of debtor and creditor, and the Administrative Agent, each
Letter of Credit Issuer and the Lenders have no fiduciary or other special
relationship with the Borrower and its Subsidiaries, and no term or provision of
any Credit Document, no course of dealing, no written or oral communication, or
other action, shall be construed so as to deem such relationship to be other
than that of debtor and creditor.
12.21. MARGIN STOCK. The Lenders are not relying on any direct or
indirect security of any Margin Stock in extending the credit facilities
provided for herein and this Agreement shall be construed in a manner consistent
with such intention.
12.22. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties herein shall survive the making of Loans and the issuance of
Letters of Credit hereunder, the execution and delivery of this Agreement, the
Notes and the other documents the forms of which are attached as Exhibits
hereto, the issue and delivery of the Notes, any disposition thereof by any
holder thereof, and any investigation made by the Administrative Agent or any
Lender or any other holder of any of the Notes or on its behalf. All statements
contained in any certificate or other document delivered to the Administrative
Agent or any Lender or any holder of any Notes by or on behalf of the Borrower
or of its Subsidiaries pursuant hereto or otherwise specifically for use in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder, made as of the
respective dates specified therein or, if no date is specified, as of the
respective dates furnished to the Administrative Agent or any Lender.
[The balance of this page is intentionally blank;
the next page is an unnumbered signature page.]
71
77
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
NCS HEALTHCARE, INC. NATIONAL CITY BANK
BY: /s/ Jeffrey R. Steinhilber BY: /s/ Timothy G. Healy
------------------------------- -------------------------
SENIOR VICE PRESIDENT & CHIEF TITLE: VICE PRESIDENT
FINANCIAL OFFICER
KEYBANK NATIONAL ASSOCIATION, MELLON BANK, N.A.
INDIVIDUALLY AS A LENDER,
A LETTER OF CREDIT BY: /s/ Colleen P. McCullum
ISSUER AND AS --------------------------
ADMINISTRATIVE AGENT TITLE: BANKING OFFICER
BY: /s/ Thomas J. Purcell
------------------------------ STAR BANK, N.A.
VICE PRESIDENT
BY: /s/ David J. Dannemiller
--------------------------
TITLE: VICE PRESIDENT
NBD BANK,
INDIVIDUALLY AND AS CO-AGENT BANK ONE, N.A.
BY: /s/ Winfred S. Pinet BY: /s/ Jan E. Petrik
------------------------------ --------------------------
TITLE: FIRST VICE PRESIDENT TITLE: VICE PRESIDENT
78
ANNEX I
INFORMATION AS TO LENDERS
=============================================================================================================================
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
KeyBank National KeyBank National Association KeyBank National Association,
Association Key Center Cayman Islands Branch
GENERAL REVOLVING 127 Public Square c/o KeyBank National Association
COMMITMENT: Cleveland, Ohio 44114 Key Center
127 Public Square
$40,000,000 CONTACTS/ NOTIFICATION METHODS: Cleveland, Ohio 44114
KeyBank National Association
SWING LINE REVOLVING Key Center
COMMITMENT: 127 Public Square
Cleveland, Ohio 44114
$5,000,000 Attn.: Large Corporate Group
Facsimile: (216) 689-4981
PRIMARY CONTACT:
Thomas J. Purcell
Vice President
Direct Dial: (216) 689-4439
Facsimile: (216) 689-4981
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
Sandy Wilder
Large Corporate Group
Phone: (216) 689-4448
FAX: (216) 689-4981
CONTACT FOR LETTERS OF CREDIT:
International Department
Fax: (216) 689-3683
WIRING INFORMATION:
ABA # 041 001 039
Ref.: NCS HealthCare, Inc.
Attention: Commercial Loan
Operations
79
=============================================================================================================================
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
NBD Bank NBD Bank NBD Bank
611 Woodward Avenue 611 Woodward Avenue
GENERAL REVOLVING Detroit, Michigan 48226 Detroit, Michigan 48226
COMMITMENT:
CONTACTS/NOTIFICATION METHODS:
$30,000,000 NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attn.: Corporate and Institutional
Banking
Facsimile: (313) 225-1212
PRIMARY CONTACT:
Winifred S. Pinet
First Vice President
Mail Suite 8074
Direct Dial: (313) 225-1313
BACK-UP CONTACT:
Carvetta Q. Colquitt
Direct Dial: (313) 225-3698
Facsimile: (313) 225-1212
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
Carvetta Q. Colquitt
Direct Dial: (313) 225-3698
Facsimile: (313) 225-1212
LETTER OF CREDIT NOTIFICATION:
Madeline Savary
Direct Dial: (313) 225-1349
PAYMENT INSTRUCTIONS:
Tax ID # 38-0864715
ABA # 072 000 326
Account # 212115: Comm'l Loans No.
------
Attention: Commercial Loan
Operations
Reference: NCS HealthCare, Inc.
2
80
=============================================================================================================================
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
National City Bank National City Bank National City Bank
National City Center National City Center
GENERAL REVOLVING 1900 East Ninth Street 1900 East Ninth Street
COMMITMENT: Cleveland, Ohio 44114 Cleveland, Ohio 44114
$15,000,000 CONTACTS/NOTIFICATION METHODS:
Timothy G. Healy
Vice President
10th Floor
Locator Code 2104
Tel.: (216) 575-9440
Fax.: (216) 575-9396
Back-Up Contact:
Cheryl Ging, CSR
Locator 2104
Tel.: (216) 575-9208
Fax.: (216) 575-9396
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
Joyce Johnson, Processor
Locator 3032
Tel.: (216) 575-2145
Fax.: (216) 575-9620
PAYMENT INSTRUCTIONS:
Tax ID # 34-6420310
ABA # 041 000 124
Account No. 151804
Attention: Commercial Loan
Operations
Reference: NCS HealthCare, Inc.,
Obligor #3667216702
3
81
=============================================================================================================================
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. Mellon Bank, N. A. Mellon Bank, N. A.
One Mellon Bank Center One Mellon Bank Center
GENERAL REVOLVING Suite 230 Suite 230
COMMITMENT: Pittsburgh, Pennsylvania 15259-0001 Pittsburgh, Pennsylvania 15259-0001
$15,000,000
CONTACTS/NOTIFICATION METHODS:
Mellon Bank, N. A.
Two Mellon Bank Center
Suite 230
Pittsburgh, Pennsylvania 15259-0001
Attn.: Healthcare Banking
Fax.: (412) 234-9010
PRIMARY CONTACT:
Colleen McCullum
Room 270
Tel.: (412) 236-3984
Fax.: (412) 234-9010
BACK-UP CONTACT:
Richard Arrington
Room 270
Tel.: (412) 234-7958
Fax.: (412) 234-9010
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
Christine Bissel
Corp. Loan Administration
Room 153-2332
Three Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Tel.: (412) 234-6726
Fax.: (412) 234-5049
PAYMENT INSTRUCTIONS:
ABA # 0430-0026-1
Attention: Commercial Loan
Operations
Reference: NCS HealthCare, Inc.
Account No. 990873800
4
82
=============================================================================================================================
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
Star Bank, N. A. Star Bank, N. A. Star Bank, N. A.
Suite 211 Suite 211
GENERAL REVOLVING 1350 Euclid Avenue 1350 Euclid Avenue
COMMITMENT: Cleveland, Ohio 44115 Cleveland, Ohio 44115
$15,000,000 CONTACTS/NOTIFICATION METHODS:
David J. Dannemiller
ML 4432
Tel.: (216) 623-9233
Fax.: (216) 623-9208
Back-up Contact:
John W. Barrett
Tel.: (216) 623-9221
Fax.: (216) 623-9208
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
Cathy Siegel
Star Bank, N. A.
13th Floor
6 East 4th Street
Cincinnati, Ohio 45202
Tel.: (513) 632-4032
Fax.: (513) 632-2965
PAYMENT INSTRUCTIONS:
Star Bank, N. A.
425 Walnut Street
Cincinnati, Ohio 45201-1038
Tax ID # 31-0841368
ABA # 042 000 013
Attention: Commercial Loan
Operations
Reference: NCS HealthCare, Inc.
Account No. 9901893
5
83
=============================================================================================================================
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- -----------------------------------------------------------------------------------------------------------------------------
Bank One, N. A. Bank One, N. A. Bank One, N. A.
Third Floor Third Floor
GENERAL REVOLVING 600 Superior Avenue 600 Superior Avenue
COMMITMENT: Cleveland, Ohio 44114 Cleveland, Ohio 44114
$20,000,000 CONTACTS/NOTIFICATION METHODS:
Jan E. Petrik
Vice President
Internal Zip: OH2-5435
Bank One, N. A.
P.O. Box 268
30 South Park Place
Painesville, Ohio 44077
Tel.: (216) 352-5698
Fax.: (216) 352-5971
BACKUP CONTACT:
Pamela LeRose
[Painesville, Ohio address above]
Tel.: (216) 352-5557
Fax.: (216) 352-5971
CONTACT FOR BORROWINGS, PAYMENTS,
ETC.:
For Bank-to-Bank Contact:
Rose Gapinski
[Cleveland, Ohio address above]
Tel.: (216) 781-2360
Fax.: (216) 348-2972
For Outside Customer Contact:
Pat Morgan
[Painesville, Ohio address above]
Tel.: (216) 352-5546
Fax.: (216) 352-5012
PAYMENT INSTRUCTIONS:
Tax ID # 31-4148768
ABA # 044 0000 37
Attention: Rose Gapinski,
Commercial Loan Operations
Reference: NCS HealthCare, Inc.,
Loan #_______
=============================================================================================================================
6