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Exhibit (b)
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 3, 2000
Among
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
and
BANK OF AMERICA, N.A.
as the Administrative Agent
and
xxxxxx.xxx, INC.
as the Borrower
and
Certain Subsidiaries of the Borrower
from time to tome party hereto,
as the Guarantors,
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TABLE OF CONTENTS
Section Page
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ARTICLE 1 LOANS AND LETTERS OF CREDIT............................................................................ 1
1.1 Total Facility................................................................................. 1
1.2 Revolving Loans................................................................................ 2
1.3 Reserved....................................................................................... 5
1.4 Letters of Credit.............................................................................. 5
1.5 Bank Products.................................................................................. 9
ARTICLE 2 INTEREST AND FEES...................................................................................... 9
2.1 Interest....................................................................................... 9
2.2 Continuation and Conversion Elections.......................................................... 10
2.3 Maximum Interest Rate.......................................................................... 11
2.4 Closing Fee.................................................................................... 11
2.5 Unused Line Fee................................................................................ 11
2.6 Letter of Credit Fee........................................................................... 12
2.7 Collateral Administration Fee.................................................................. 12
ARTICLE 3 PAYMENTS AND PREPAYMENTS............................................................................... 12
3.1 Revolving Loans................................................................................ 12
3.2 Termination of Facility........................................................................ 12
3.3 Special Provisions............................................................................. 13
3.4 Reserved.......................................................................................
3.5 LIBOR Rate Loan Prepayments.................................................................... 13
3.6 Payments by the Borrower....................................................................... 13
3.7 Payments as Revolving Loans.................................................................... 13
3.8 Apportionment, Application and Reversal of Payments............................................ 13
3.9 Indemnity for Returned Payments................................................................ 14
3.10 Administrative Agent's and Lenders' Books and Records; Monthly Statements..................... 14
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY................................................................. 15
4.1 Taxes.......................................................................................... 15
4.2 Illegality..................................................................................... 16
4.3 Increased Costs and Reduction of Return........................................................ 16
4.4 Funding Losses................................................................................. 17
4.5 Inability to Determine Rates................................................................... 18
4.6 Certificates of Administrative Agent.......................................................... 18
4.7 Survival....................................................................................... 19
ARTICLE 5 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES...................................................... 19
5.1 Books and Records.............................................................................. 19
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5.2 Financial Information.......................................................................... 19
5.3 Notices to the Lenders......................................................................... 21
ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS
6.1 Authorization, Validity, and Enforceability of this Agreement and the Loan Documents........... 24
6.2 Validity and Priority of Security Interest..................................................... 24
6.3 Organization and Qualification................................................................. 24
6.4 Corporate Name; Prior Transactions............................................................. 24
6.5 Subsidiaries and Affiliates.................................................................... 24
6.6 Financial Statements and Projections........................................................... 25
6.7 Capitalization................................................................................. 25
6.8 Solvency....................................................................................... 25
6.9 Debt........................................................................................... 25
6.10 Distributions.................................................................................. 25
6.11 Real Estate; Leases............................................................................ 26
6.12 Proprietary Rights............................................................................. 26
6.13 Trade Names.................................................................................... 26
6.14 Litigation..................................................................................... 26
6.15 Labor Disputes................................................................................. 26
6.16 Environmental Laws............................................................................. 26
6.17 No Violation of Law............................................................................ 27
6.18 No Default..................................................................................... 27
6.19 ERISA Compliance............................................................................... 27
6.20 Taxes.......................................................................................... 27
6.21 Regulated Entities............................................................................. 28
6.22 Use of Proceeds; Margin Regulations............................................................ 28
6.23 Copyrights, Patents, Trademarks and Licenses, etc.............................................. 28
6.24 No Material Adverse Change..................................................................... 28
6.25 Full Disclosure................................................................................ 28
6.26 Material Agreements............................................................................ 28
6.27 Bank Accounts.................................................................................. 28
6.28 Governmental Authorization..................................................................... 28
ARTICLE 7 AFFIRMATIVE AND NEGATIVE COVENANTS..................................................................... 29
7.1 Taxes and Other Obligations.................................................................... 29
7.2 Legal Existence and Good Standing.............................................................. 29
7.3 Compliance with Law and Agreements; Maintenance of Licenses.................................... 29
7.4 Maintenance of Property; Inspection of Property................................................ 29
7.5 Insurance...................................................................................... 30
7.6 Insurance and Condemnation Proceeds............................................................ 30
7.7 Compliance with ERISA.......................................................................... 31
7.8 Mergers, Consolidations or Sales............................................................... 31
7.9 Distributions; Capital Change; Restricted Investments.......................................... 32
7.10 Transactions Affecting Collateral or Obligations............................................... 32
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7.11 Guaranties..................................................................................... 33
7.12 Debt........................................................................................... 33
7.13 Prepayment..................................................................................... 33
7.14 Transactions with Affiliates................................................................... 33
7.15 Investment Banking and Finder's Fees........................................................... 33
7.16 Business Conducted............................................................................. 34
7.17 Liens.......................................................................................... 34
7.18 Sale and Leaseback Transactions................................................................ 34
7.19 New Subsidiaries............................................................................... 34
7.20 Fiscal Year.................................................................................... 34
7.21 Capital Expenditures........................................................................... 34
7.22 EBITDA......................................................................................... 34
7.23 Minimum Availability........................................................................... 35
7.24 Use of Proceeds................................................................................ 35
7.25 Further Assurances............................................................................. 35
ARTICLE 8 CONDITIONS OF LENDING.................................................................................. 36
8.1 Conditions Precedent to Making of Loans on the Closing Date.................................... 36
8.2 Conditions Precedent to Each Loan.............................................................. 37
ARTICLE 9 DEFAULT; REMEDIES...................................................................................... 38
9.1 Events of Default.............................................................................. 38
9.2 Remedies....................................................................................... 41
ARTICLE 10 TERM AND TERMINATION.................................................................................. 42
10.1 Term and Termination........................................................................... 42
ARTICLE 11 AMENDMENTS; WAIVERs; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS.......................................... 43
11.1 Amendments and Waivers......................................................................... 43
11.2 Assignments; Participations.................................................................... 44
ARTICLE 12 THE ADMINISTRATIVE AGENT............................................................................. 46
12.1 Appointment and Authorization.................................................................. 46
12.2 Delegation of Duties........................................................................... 47
12.3 Liability of Administrative Agent............................................................. 47
12.4 Reliance by Administrative Agent.............................................................. 47
12.5 Notice of Default.............................................................................. 48
12.6 Credit Decision................................................................................ 48
12.7 Indemnification................................................................................ 49
12.8 Administrative Agent in Individual Capacity................................................... 49
12.9 Successor Administrative Agent................................................................ 49
12.10 Withholding Tax................................................................................ 50
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12.11 Collateral Matters............................................................................. 51
12.12 Restrictions on Actions by Lenders; Sharing of Payments........................................ 52
12.13 Agency for Perfection.......................................................................... 53
12.14 Payments by Administrative Agent to Lenders................................................... 53
12.15 Settlement..................................................................................... 53
12.16 Letters of Credit; Intra-Lender Issues......................................................... 57
12.17 Concerning the Collateral and the Related Loan Documents....................................... 59
12.18 Field Audit and Examination Reports; Disclaimer by Lenders..................................... 59
12.19 Relation Among Lenders......................................................................... 60
ARTICLE 13 MISCELLANEOUS......................................................................................... 63
13.1 No Waivers; Cumulative Remedies................................................................ 63
13.2 Severability................................................................................... 64
13.3 Governing Law; Choice of Forum; Service of Process............................................. 64
13.4 WAIVER OF JURY TRIAL........................................................................... 65
13.5 Survival of Representations and Warranties..................................................... 65
13.6 Other Security and Guaranties.................................................................. 65
13.7 Fees and Expenses.............................................................................. 65
13.8 Notices........................................................................................ 66
13.9 Waiver of Notices.............................................................................. 67
13.10 Binding Effect................................................................................. 67
13.11 Indemnity of the Administrative Agent and the Lenders by the Borrower......................... 68
13.12 Limitation of Liability........................................................................ 68
13.13 Final Agreement................................................................................ 69
13.14 Counterparts................................................................................... 69
13.15 Captions....................................................................................... 69
13.16 Right of Setoff................................................................................ 69
13.17 Confidentiality................................................................................ 70
13.18 Conflicts with Other Loan Documents............................................................ 70
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A - DEFINED TERMS
EXHIBIT A - FORM OF REVOLVING LOAN NOTE
EXHIBIT B - FORM OF BORROWING BASE CERTIFICATE
EXHIBIT C - PRO-FORMA BALANCE SHEET
EXHIBIT D - FORM OF NOTICE OF BORROWING
EXHIBIT E - FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT F - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT G - FORM OF JOINDER AGREEMENT
EXHIBIT H - FORM OF COMPLIANCE CERTIFICATE
SCHEDULE 1.2 - LENDERS' COMMITMENTS
SCHEDULE 6.3 - ORGANIZATION AND QUALIFICATIONS
SCHEDULE 6.5 - SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.9 - DEBT
SCHEDULE 6.11 - REAL ESTATE; LEASES
SCHEDULE 6.12 - PROPRIETARY RIGHTS
SCHEDULE 6.13 - TRADE NAMES
SCHEDULE 6.14 - LITIGATION
SCHEDULE 6.15 - LABOR DISPUTES
SCHEDULE 6.16 - ENVIRONMENTAL LAW
SCHEDULE 6.19 - ERISA COMPLIANCE
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of
November 3, 2000, (this "Agreement") among the financial institutions from time
to time parties hereto (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders"), BANK OF AMERICA, N.A. with an
office at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, as agent for
the Lenders (in its capacity as agent, the "Administrative Agent"), and
XXXXXX.XXX, INC., a Florida corporation (the "Borrower"), and the Subsidiary
Guarantors (as defined herein).
W I T N E S S E T H:
WHEREAS, the Borrower, the Subsidiary Guarantors,
Administrative Agent and Lenders entered into a Credit Agreement, dated May 12,
2000 ("Prior Agreement").
WHEREAS, the Borrower, the Subsidiary Guarantors,
Administrative Agent and Lenders desire to amend and restate the Prior Agreement
so that, as amended and restated, a revolving line of credit for loans and
letters of credit in an amount not to exceed $90,000,000 will be made available
to Borrower, which extensions of additional credit the Borrower will be used for
the purposes permitted in this Agreement;
WHEREAS, capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed thereto in Annex A
which is attached hereto and incorporated herein; the rules of construction
contained therein shall govern the interpretation of this Agreement, and all
Annexes, Exhibits and Schedules attached hereto are incorporated herein by
reference;
WHEREAS, the Lenders have agreed to make available to the
Borrower an amended and restated revolving credit facility upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Agreement, and for good and valuable consideration,
the receipt of which is hereby acknowledged, the Lenders, the Administrative
Agent, and the Borrower hereby agree as follows.
ARTICLE 1
LOANS AND LETTERS OF CREDIT
1.1 Total Facility. Subject to all of the terms and conditions
of this Agreement, the Lenders agree to make available a total credit facility
of up to $90,000,000 (the "Total Facility") to the Borrower from time to time
during the term of this Agreement. The Total Facility shall be composed of a
revolving line of credit consisting of Revolving Loans and Letters of Credit
described herein.
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1.2 Revolving Loans.
(a) (i) Amounts. Subject to the satisfaction of the conditions
precedent set forth in Article 8, each Lender severally, but not jointly,
agrees, upon the Borrower's request from time to time on any Business Day during
the period from the Closing Date to the Termination Date, to make revolving
loans (the "Revolving Loans") to the Borrower in amounts not to exceed such
Lender's Pro Rata Share of Availability, except for Non-Ratable Loans and Agent
Advances. The Lenders, however, in their unanimous discretion, may elect to make
Revolving Loans or issue or arrange to have issued Letters of Credit in excess
of the Borrowing Base on one or more occasions, but if they do so, neither the
Administrative Agent nor the Lenders shall be deemed thereby to have changed the
limits of the Borrowing Base or to be obligated to exceed such limits on any
other occasion. If the Aggregate Revolver Outstandings would exceed Availability
after giving effect to any Borrowing, the Lenders may refuse to make or may
otherwise restrict the making of Revolving Loans as the Lenders determine until
such excess has been eliminated, subject to the Administrative Agent's
authority, in its sole discretion, to make Agent Advances pursuant to the terms
of Section 1.2(i).
(ii) Notes. The Borrower shall execute and deliver to each
Lender a note to evidence the Revolving Loan of that Lender. Each note shall be
in the principal amount of the Lender's Pro Rata Share of the Revolving Loan
Commitments, dated the date hereof and substantially in the form of Exhibit A
(each a "Revolving Loan Note" and, collectively, the "Revolving Loan Notes").
Each Revolving Loan Note shall represent the obligation of Borrower to pay the
amount of Lender's Pro Rata Share of the Revolving Loan Commitments, or, if
less, such Lender's Pro Rata Share of the aggregate unpaid principal amount of
all Revolving Loans to Borrower together with interest thereon as prescribed in
Section 1.2. The entire unpaid balance of the Revolving Loan and all other
non-contingent Obligations shall be immediately due and payable in full in
immediately available funds on the Termination Date.
(iii) Securities Repurchase Loans/Acquisition Loans. In
addition to other Permitted Uses, all or any portion of a Revolver Loan may be
designated by the Borrower from time to time (A) as a Securities Repurchase
Loan, the proceeds of which may be used for Eligible Securities Repurchases to
the extent, and only to the extent, that each of the Securities Repurchase Loan
Conditions is satisfied, or (B) as an Acquisition Loan, the proceeds of which
may be used for Eligible Acquisitions to the extent, and only to the extent,
that each of the Acquisition Loan Conditions is satisfied.
(iv) Voluntary Commitment Reductions. The Borrower may from
time to time partially reduce the Commitments (in minimum amounts of $5,000,000)
upon five Business Days' prior written notice to the Administrative Agent;
provided, that (i) the Borrower shall not be entitled to reduce the Commitments
to less than $25,000,000, and (ii) no such reduction may be made which would
cause the sum of the aggregate principal amount of the outstanding Revolving
Loans plus the face amount of any outstanding Letters of Credit to exceed the
Borrowing Base as of such date, unless, concurrently with such reduction, the
Revolving Loans are repaid to the extent necessary to eliminate such excess. The
Administrative Agent shall promptly notify each affected Lender of receipt by
the Administrative Agent of any notice from the Borrower pursuant to this
Section 1.2(a)(iii). The Commitments, once reduced, may not be reinstated
without the prior written consent of the Administrative Agent and each Lender.
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(b) Procedure for Borrowing.
(1) Each Borrowing shall be made upon the Borrower's
irrevocable written notice delivered to the Administrative Agent in the form of
a notice of borrowing ("Notice of Borrowing"), which must be received by the
Administrative Agent prior to (i) 12:00 noon (Atlanta, Georgia time) two (2)
Business Days prior to the requested Funding Date, in the case of LIBOR Rate
Loans and (ii) 11:00 a.m. (Atlanta, Georgia time) on the requested Funding Date,
in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which in
the case of a LIBOR Rate Loan must equal or exceed $2,000,000 (and increments of
$1,000,000 in excess of such amount);
(B) the requested Funding Date, which must
be a Business Day;
(C) whether the Revolving Loans requested
are to be Base Rate Revolving Loans or LIBOR Revolving Loans (and if not
specified, it shall be deemed a request for a Base Rate Revolving Loan); and
(D) the duration of the Interest Period for
LIBOR Revolving Loans (and if not specified, it shall be deemed a request for an
Interest Period of one month);
provided, however, that with respect to the Borrowings to be made on the Closing
Date, such Borrowings will consist of Base Rate Revolving Loans or LIBOR
Revolving Loans, as the case may be, with respect to loans outstanding on such
date under the Prior Agreement.
(2) In lieu of delivering a Notice of
Borrowing, the Borrower may give the Administrative Agent telephonic notice of
such request for advances to the Designated Account on or before the deadline
set forth above. The Administrative Agent at all times shall be entitled to rely
on such telephonic notice in making such Revolving Loans, regardless of whether
any written confirmation is received.
(3) The Borrower shall have no right to
request a LIBOR Rate Loan while a Default or Event of Default has occurred and
is continuing.
(c) Reliance upon Authority. Prior to the Closing
Date, the Borrower shall deliver to the Administrative Agent, a notice setting
forth the account of the Borrower ("Designated Account") to which the
Administrative Agent is authorized to transfer the proceeds of the Revolving
Loans requested hereunder. The Borrower may designate a replacement account from
time to time by written notice. All such Designated Accounts must be reasonably
satisfactory to the Administrative Agent. The Administrative Agent is entitled
to rely conclusively on any person's request for Revolving Loans on behalf of
the Borrower, so long as the proceeds thereof are to be transferred to the
Designated Account. The Administrative Agent has no duty to verify the identity
of any individual representing himself or herself as a person authorized by the
Borrower to make such requests on its behalf.
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(d) No Liability. The Administrative Agent shall not
incur any liability to the Borrower as a result of acting upon any notice
referred to in Sections 1.2(b) and (c), which the Administrative Agent believes
in good faith to have been given by an officer or other person duly authorized
by the Borrower to request Revolving Loans on its behalf. The crediting of
Revolving Loans to the Designated Account conclusively establishes the
obligation of the Borrower to repay such Revolving Loans as provided herein.
(e) Notice Irrevocable. Subject to the provisions of
Section 4.5, any Notice of Borrowing (or telephonic notice in lieu thereof) made
pursuant to Section 1.2(b) shall be irrevocable. The Borrower shall be bound to
borrow the funds requested therein in accordance therewith.
(f) Administrative Agent's Election. Promptly after
receipt of a Notice of Borrowing (or telephonic notice in lieu thereof), the
Administrative Agent shall elect to apply to such requested Borrowing the terms
of Section 1.2(g) with respect to the funding of new LIBOR Revolving Loans, or
the terms of Section 1.2(h) with respect to all other Revolving Loans. If the
Bank declines in its sole discretion to make a Non-Ratable Loan pursuant to
Section 1.2(h), the terms of Section 1.2(g) shall apply to the requested
Borrowing.
(g) Making of Revolving Loans. If Administrative
Agent elects to have the terms of this Section 1.2(g) apply to a requested
Borrowing, then promptly after receipt of a Notice of Borrowing or telephonic
notice in lieu thereof, the Administrative Agent shall notify the Lenders by
telecopy, telephone or e-mail of the requested Borrowing. Each Lender shall
transfer its Pro Rata Share of the requested Borrowing available to the
Administrative Agent in immediately available funds, to the account from time to
time designated by Administrative Agent, not later than 12:00 noon (Atlanta,
Georgia time) on the applicable Funding Date. After the Administrative Agent's
receipt of all proceeds of such Revolving Loans, the Administrative Agent shall
make the proceeds of such Revolving Loans available to the Borrower on the
applicable Funding Date by transferring same day funds to the account designated
by the Borrower; provided, however, that the amount of Revolving Loans so made
on any date shall not exceed the Availability on such date.
(h) Making of Non-Ratable Loans.
(A) If Administrative Agent elects, with the consent
of the Bank, to have the terms of this Section 1.2(h) apply to a requested
Borrowing, the Bank shall make a Revolving Loan in the amount of that Borrowing
available to the Borrower on the applicable Funding Date by transferring same
day funds to Borrower's Designated Account. Each Revolving Loan made solely by
the Bank pursuant to this Section is herein referred to as a "Non-Ratable Loan",
and such Revolving Loans are collectively referred to as the "Non-Ratable
Loans." Each Non-Ratable Loan shall be subject to all the terms and conditions
applicable to other Revolving Loans except that all payments thereon shall be
payable to the Bank solely for its own account. The aggregate amount of
Non-Ratable Loans outstanding at any time shall not exceed $5,000,000. The
Administrative Agent shall not request the Bank to make any Non-Ratable Loan if
(1) the Administrative Agent has received written notice from any Lender that
one or more of the applicable conditions precedent set forth in Article 8 will
not be satisfied on the requested Funding Date for the applicable Borrowing, or
(2) the requested Borrowing would
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exceed Availability on that Funding Date.
(B) The Non-Ratable Loans shall be secured by the
Administrative Agent's Liens in and to the Collateral and shall constitute Base
Rate Revolving Loans and Obligations hereunder.
(i) Agent Advances.
(A) Subject to the limitations set forth below, the
Administrative Agent is authorized by the Borrower and the Lenders, from time to
time in the Administrative Agent's sole discretion, (A) after the occurrence of
a Default or an Event of Default, or (B) at any time that any of the other
conditions precedent set forth in Article 8 have not been satisfied, to make
Base Rate Revolving Loans to the Borrower on behalf of the Lenders in an
aggregate amount outstanding at any time not to exceed 10% of the Borrowing Base
(but not in excess of the Maximum Revolver Amount) for no longer than 15
consecutive days which the Administrative Agent, in its reasonable business
judgment, deems necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, (2) to enhance the likelihood of, or
maximize the amount of, repayment of the Loans and other Obligations, or (3) to
pay any other amount chargeable to the Borrower pursuant to the terms of this
Agreement, including costs, fees and expenses as described in Section 13.7 (any
of such advances are herein referred to as "Agent Advances"); provided, that the
Majority Lenders may at any time revoke the Administrative Agent's authorization
to make Agent Advances. Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent's receipt thereof.
(B) The Agent Advances shall be secured by the
Administrative Agent's Liens in and to the Collateral and shall constitute Base
Rate Revolving Loans and Obligations hereunder.
1.3 ACH Services. The Administrative Agent shall provide ACH
Transactions on behalf of the Borrower pursuant to the Bank's customary Treasury
Management Agreements as may be applicable.
1.4 Letters of Credit.
(a) Agreement to Issue or Cause To Issue. Subject to
the terms and conditions of this Agreement, the Administrative Agent agrees (i)
to cause the Letter of Credit Issuer to issue for the account of the Borrower
one or more commercial/documentary and standby letters of credit ("Letter of
Credit") and/or (ii) to provide credit support or other enhancement to a Letter
of Credit Issuer acceptable to Administrative Agent, which issues a Letter of
Credit for the account of the Borrower (any such credit support or enhancement
being herein referred to as a "Credit Support") from time to time during the
term of this Agreement.
(b) Amounts; Outside Expiration Date. The
Administrative Agent shall not have any obligation to issue or cause to be
issued any Letter of Credit or to provide Credit Support for any Letter of
Credit at any time if: (i) the maximum face amount of the requested Letter of
Credit is greater than the Unused Letter of Credit Subfacility at such time;
(ii) the maximum undrawn amount of the requested Letter of Credit and all
commissions, fees, and charges due from the Borrower in connection with the
opening thereof would exceed
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Availability at such time; or (iii) such Letter of Credit has an expiration date
less than 30 days prior to the Stated Termination Date or more than 12 months
from the date of issuance for standby letters of credit and 180 days for
documentary letters of credit. With respect to any Letter of Credit which
contains any "evergreen" or automatic renewal provision, each Lender shall be
deemed to have consented to any such extension or renewal unless any such Lender
shall have provided to the Administrative Agent, written notice that it declines
to consent to any such extension or renewal at least thirty (30) days prior to
the date on which the Letter of Credit Issuer is entitled to decline to extend
or renew the Letter of Credit. If all of the requirements of this Section 1.4
are met and no Default or Event of Default has occurred and is continuing, no
Lender shall decline to consent to any such extension or renewal.
(c) Other Conditions. In addition to conditions
precedent contained in Article 8, the obligation of the Administrative Agent to
issue or to cause to be issued any Letter of Credit or to provide Credit Support
for any Letter of Credit is subject to the following conditions precedent having
been satisfied in a manner reasonably satisfactory to the Administrative Agent:
(1) The Borrower shall have delivered to the
Letter of Credit Issuer, at such times and in such manner as such Letter of
Credit Issuer may prescribe, an application in form and substance satisfactory
to such Letter of Credit Issuer and reasonably satisfactory to the
Administrative Agent for the issuance of the Letter of Credit and such other
documents as may be required pursuant to the terms thereof, and the form, terms
and purpose of the proposed Letter of Credit shall be reasonably satisfactory to
the Administrative Agent and the Letter of Credit Issuer; and
(2) As of the date of issuance, no order of
any court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain money center banks generally from issuing letters of credit
of the type and in the amount of the proposed Letter of Credit, and no law, rule
or regulation applicable to money center banks generally and no request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over money center banks generally shall prohibit, or
request that the proposed Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or the issuance of such Letters of Credit.
(d) Issuance of Letters of Credit.
(1) Request for Issuance. Borrower must
notify the Administrative Agent of a requested Letter of Credit at least three
(3) Business Days prior to the proposed issuance date. Such notice shall be
irrevocable and must specify the original face amount of the Letter of Credit
requested, the Business Day of issuance of such requested Letter of Credit,
whether such Letter of Credit may be drawn in a single or in partial draws, the
Business Day on which the requested Letter of Credit is to expire, the purpose
for which such Letter of Credit is to be issued, and the beneficiary of the
requested Letter of Credit. The Borrower shall attach to such notice the
proposed form of the Letter of Credit.
(2) Responsibilities of the Administrative
Agent; Issuance. As of the Business Day immediately preceding the requested
issuance date of the Letter of Credit,
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the Administrative Agent shall determine the amount of the applicable Unused
Letter of Credit Subfacility and Availability. If (i) the face amount of the
requested Letter of Credit is less than the Unused Letter of Credit Subfacility
and (ii) the amount of such requested Letter of Credit and all commissions,
fees, and charges due from the Borrower in connection with the opening thereof
would not exceed Availability, the Administrative Agent shall cause the Letter
of Credit Issuer to issue the requested Letter of Credit on the requested
issuance date so long as the other conditions hereof are met.
(3) No Extensions or Amendment. The
Administrative Agent shall not be obligated to cause the Letter of Credit Issuer
to extend or amend any Letter of Credit issued pursuant hereto unless the
requirements of this Section 1.4 are met as though a new Letter of Credit were
being requested and issued.
(e) Payments Pursuant to Letters of Credit. The
Borrower agrees to reimburse immediately the Letter of Credit Issuer for any
draw under any Letter of Credit and the Administrative Agent for the account of
the Lenders upon any payment pursuant to any Credit Support, and to pay the
Letter of Credit Issuer the amount of all other charges and fees payable to the
Letter of Credit Issuer in connection with any Letter of Credit immediately when
due, irrespective of any claim, setoff, defense or other right which the
Borrower may have at any time against the Letter of Credit Issuer or any other
Person. Each drawing under any Letter of Credit shall constitute a request by
the Borrower to the Administrative Agent for a Borrowing of a Base Rate
Revolving Loan (or a LIBOR Revolving Loan to the extent the Borrower has
complied with the procedures of Section 1.2(b) prior to the due date of any
applicable reimbursement obligations) in the amount of such drawing. The Funding
Date with respect to such borrowing shall be the date of such drawing.
(f) Indemnification; Exoneration; Power of Attorney.
(1) Indemnification. In addition to amounts
payable as elsewhere provided in this Section 1.4, the Borrower agrees to
protect, indemnify, pay and save the Lenders and the Administrative Agent
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
any Lender or the Administrative Agent (other than a Lender in its capacity as
Letter of Credit Issuer) may incur or be subject to as a consequence, direct or
indirect, of the issuance of any Letter of Credit or the provision of any Credit
Support or enhancement in connection therewith. The Borrower's obligations under
this Section shall survive payment of all other Obligations.
(2) Assumption of Risk by the Borrower. As
among the Borrower, the Lenders, and the Administrative Agent, the Borrower
assumes all risks of the acts and omissions of, or misuse of any of the Letters
of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Lenders and the
Administrative Agent shall not be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any Person in connection with the application for and issuance of and
presentation of drafts with respect to any of the Letters of Credit, even if it
should prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency of any instrument
transferring or assigning or
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purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (C) the failure of the beneficiary of any
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (D) errors, omissions, interruptions, or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in interpretation of
technical terms; (F) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (G) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; (H) any
consequences arising from causes beyond the control of the Lenders or the
Administrative Agent, including any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto Governmental Authority or
(I) the Letter of Credit Issuer's honor of a draw for which the draw or any
certificate fails to comply in any respect with the terms of the Letter of
Credit. None of the foregoing shall affect, impair or prevent the vesting of any
rights or powers of the Administrative Agent or any Lender under this Section
1.4(f).
(3) Exoneration. Without limiting the
foregoing, no action or omission whatsoever by Administrative Agent or any
Lender (excluding any Lender in its capacity as a Letter of Credit Issuer) shall
result in any liability of Administrative Agent or and Lender to the Borrower,
or relieve the Borrower of any of its obligations hereunder to any such Person.
(4) Rights Against Letter of Credit Issuer.
Nothing contained in this Agreement is intended to limit the Borrower's rights,
if any, with respect to the Letter of Credit Issuer which arise as a result of
the letter of credit application and related documents executed by and between
the Borrower and the Letter of Credit Issuer.
(5) Account Party. The Borrower hereby
authorizes and directs any Letter of Credit Issuer to name the Borrower as the
"Account Party" therein and to deliver to the Administrative Agent all
instruments, documents and other writings and property received by the Letter of
Credit Issuer pursuant to the Letter of Credit, and to accept and rely upon the
Administrative Agent's instructions and agreements with respect to all matters
arising in connection with the Letter of Credit or the application therefor.
(g) Supporting Letter of Credit; Cash Collateral. If,
notwithstanding the provisions of Section 1.4(b) and Section 10.1, any Letter of
Credit or Credit Support is outstanding upon the termination of this Agreement,
then upon such termination the Borrower shall deposit with the Administrative
Agent, for the ratable benefit of the Administrative Agent and the Lenders, with
respect to each Letter of Credit or Credit Support then outstanding, (i) cash or
Cash Equivalents as collateral, in form and substance satisfactory to the
Administrative Agent, for at least 110% of all reimbursement obligations that
may arise under any such Letter of Credit of Credit Support, or (ii) a standby
letter of credit (a "Supporting Letter of Credit") in form and substance
satisfactory to the Administrative Agent, issued by an issuer satisfactory to
the Administrative Agent in an amount equal to the greatest amount for which
such Letter of Credit or such Credit Support may be drawn plus any fees and
expenses associated with such Letter of Credit or such Credit Support, under
which Supporting Letter of Credit the Administrative Agent is entitled to draw
amounts necessary to reimburse the Administrative Agent and the Lenders for
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payments to be made by the Administrative Agent and the Lenders under such
Letter of Credit or Credit Support and any fees and expenses associated with
such Letter of Credit or Credit Support. Such Supporting Letter of Credit shall
be held by the Administrative Agent, for the ratable benefit of the
Administrative Agent and the Lenders, as security for, and to provide for the
payment of, the aggregate undrawn amount of such Letters of Credit or such
Credit Support remaining outstanding.
1.5 Bank Products. The Borrower may request and the Administrative
Agent may, in its sole and absolute discretion, arrange for the Borrower to
obtain from the Bank or the Bank's Affiliates Bank Products although the
Borrower is not required to do so. If Bank Products are provided by an Affiliate
of the Bank, the Borrower agrees to indemnify and hold the Administrative Agent,
the Bank and the Lenders harmless from any and all costs and obligations now or
hereafter incurred by the Administrative Agent, the Bank or any of the Lenders
which arise from any indemnity given by the Administrative Agent to its
Affiliates related to such Bank Products; provided, however, nothing contained
herein is intended to limit the Borrower's rights, with respect to the Bank or
its Affiliates, if any, which arise as a result of the execution of documents by
and between the Borrower and the Bank which relate to Bank Products. The
agreement contained in this Section shall survive termination of this Agreement.
The Borrower acknowledges and agrees that the obtaining of Bank Products from
the Bank or the Bank's Affiliates (a) is in the sole and absolute discretion of
the Bank or the Bank's Affiliates, and (b) is subject to all rules and
regulations of the Bank or the Bank's Affiliates.
ARTICLE 2
INTEREST AND FEES
2.1 Interest.
(a) Interest Rates. All outstanding Obligations shall bear
interest on the unpaid principal amount thereof (including, to the extent
permitted by law, on interest thereon not paid when due) from the date made
until paid in full in cash at a rate determined by reference to the Base Rate or
the LIBOR Rate plus the Applicable Margins as set forth below, but not to exceed
the Maximum Rate. If at any time Loans are outstanding with respect to which the
Borrower has not delivered to the Administrative Agent a notice specifying the
basis for determining the interest rate applicable thereto in accordance
herewith, those Loans shall bear interest at a rate determined by reference to
the Base Rate until notice to the contrary has been given to the Administrative
Agent in accordance with this Agreement and such notice has become effective.
Except as otherwise provided herein, the outstanding Obligations shall bear
interest as follows:
(i) For all Base Rate Revolving Loans and other Obligations at
a fluctuating per annum rate equal to the Base Rate plus the Applicable
Margin;
(ii) For all LIBOR Revolving Loans at a per annum rate equal
to the LIBOR Rate plus the Applicable Margin.
Each change in the Base Rate shall be reflected in the interest rate applicable
to Base Rate Loans as of the effective date of such change. All interest charges
shall be computed on the actual days
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elapsed over a year of 360 days. The Borrower shall pay to the Administrative
Agent, for the ratable benefit of Lenders, interest accrued on all Base Rate
Loans in arrears on the first day of each month hereafter and on the Termination
Date. The Borrower shall pay to the Administrative Agent, for the ratable
benefit of Lenders, interest on all LIBOR Rate Loans in arrears on each LIBOR
Interest Payment Date.
(b) Default Rate. If any Default or Event of Default
occurs and is continuing and the Administrative Agent or the Required Lenders in
their discretion so elect, then, while any such Default or Event of Default is
continuing, all of the Obligations shall bear interest at the Default Rate
applicable thereto.
2.2 Continuation and Conversion Elections.
(a) The Borrower may:
(i) elect, as of any Business Day, in the
case of Base Rate Loans to convert any Base Rate Loans (or any part thereof in
an amount not less than $2,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof) into LIBOR Rate Loans; or
(ii) elect, as of the last day of the
applicable Interest Period, to continue any LIBOR Rate Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less than
$2,000,000, or that is in an integral multiple of $1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of LIBOR Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $1,000,000, such LIBOR Rate Loans shall
automatically convert into Base Rate Loans; provided further that if the notice
shall fail to specify the duration of the Interest Period, such Interest Period
shall be one month.
(b) The Borrower shall deliver a notice of
continuation/conversion ("Notice of Continuation/Conversion") to the
Administrative Agent not later than 12:00 noon (Atlanta, Georgia time) at least
three (3) Business Days in advance of the Continuation/Conversion Date, if the
Loans are to be converted into or continued as LIBOR Rate Loans and specifying:
(i) the proposed Continuation/Conversion Date;
(ii) the aggregate amount of Loans to be converted or renewed;
(iii) the type of Loans resulting from the proposed conversion
or continuation; and
(iv) the duration of the requested Interest Period, provided,
however, the Borrower may not select an Interest Period that ends after
the Stated Termination Date.
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(c) If upon the expiration of any Interest Period
applicable to LIBOR Rate Loans, the Borrower has failed to select timely a new
Interest Period to be applicable to LIBOR Rate Loans or if any Default or Event
of Default then exists, the Borrower shall be deemed to have elected to convert
such LIBOR Rate Loans into Base Rate Loans effective as of the expiration date
of such Interest Period.
(d) The Administrative Agent will promptly notify
each Lender of its receipt of a Notice of Continuation/Conversion. All
conversions and continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the notice was
given held by each Lender.
(e) There may not be more than six (6) different
LIBOR Rate Loans in effect hereunder at any time.
2.3 Maximum Interest Rate. In no event shall any interest rate provided
for hereunder exceed the maximum rate legally chargeable by any Lender under
applicable law for such Lender with respect to loans of the type provided for
hereunder (the "Maximum Rate"). If, in any month, any interest rate, absent such
limitation, would have exceeded the Maximum Rate, then the interest rate for
that month shall be the Maximum Rate, and, if in future months, that interest
rate would otherwise be less than the Maximum Rate, then that interest rate
shall remain at the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
had not been limited by the Maximum Rate. In the event that, upon payment in
full of the Obligations, the total amount of interest paid or accrued under the
terms of this Agreement is less than the total amount of interest which would,
but for this Section 2.3, have been paid or accrued if the interest rate
otherwise set forth in this Agreement had at all times been in effect, then the
Borrower shall, to the extent permitted by applicable law, pay the
Administrative Agent, for the account of the Lenders, an amount equal to the
excess of (a) the lesser of (i) the amount of interest which would have been
charged if the Maximum Rate had, at all times, been in effect or (ii) the amount
of interest which would have accrued had the interest rate otherwise set forth
in this Agreement, at all times, been in effect over (b) the amount of interest
actually paid or accrued under this Agreement. If a court of competent
jurisdiction determines that the Administrative Agent and/or any Lender has
received interest and other charges hereunder in excess of the Maximum Rate,
such excess shall be deemed received on account of, and shall automatically be
applied to reduce, the Obligations other than interest, in the inverse order of
maturity, and if there are no Obligations outstanding, the Administrative Agent
and/or such Lender shall refund to the Borrower such excess.
2.4 Closing and Syndication Fee. The Borrower agrees to pay the
Administrative Agent on the Closing Date the closing and syndication fee (the
"Closing Fee") described in the Fee Letter.
2.5 Unused Line Fee. On the first day of each month and on the
Termination Date the Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders, in accordance with their respective Pro Rata Shares, an
unused line fee (the "Unused Line Fee") equal to the Applicable Margin per annum
in effect from time to
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time for LIBOR Revolving Loans, times the amount by which the Maximum Revolver
Amount exceeded the sum of the average daily outstanding amount of Revolving
Loans and the average daily undrawn face amount of outstanding Letters of
Credit, during the immediately preceding month or shorter period if calculated
for the first month hereafter or on the Termination Date. The Unused Line Fee
shall be computed on the basis of a 360-day year for the actual number of days
elapsed. All principal payments received by the Administrative Agent shall be
deemed to be credited to the Borrower's Loan Account immediately upon receipt
for purposes of calculating the Unused Line Fee pursuant to this Section 2.5.
2.6 Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders, in accordance with their
respective Pro Rata Shares, for each Letter of Credit, a fee (the "Letter of
Credit Fee") equal to the Applicable Margin per annum in effect from time to
time for LIBOR Revolving Loans and to Administrative Agent for the benefit of
the Letter of Credit Issuer a fronting fee of one-half of one percent (0.5%) per
annum of the undrawn face amount of each Letter of Credit, and to the Letter of
Credit Issuer, all out-of-pocket costs, fees and expenses incurred by the Letter
of Credit Issuer in connection with the application for, processing of, issuance
of, or amendment to any Letter of Credit. The Letter of Credit Fee shall be
payable monthly in arrears on the first day of each month following any month in
which a Letter of Credit is outstanding and on the Termination Date. The Letter
of Credit Fee shall be computed on the basis of a 360-day year for the actual
number of days elapsed.
2.7 Collateral Administration Fee. The Borrower shall pay to
Administrative Agent a collateral administration fee described in the Fee
Letter.
ARTICLE 3
PAYMENTS AND PREPAYMENTS
3.1 Revolving Loans. The Borrower shall repay the outstanding principal
balance of the Revolving Loans, plus all accrued but unpaid interest thereon, on
the Termination Date. The Borrower may prepay Revolving Loans at any time, and
reborrow subject to the terms of this Agreement. In addition, and without
limiting the generality of the foregoing, upon demand the Borrower shall pay to
the Administrative Agent, for account of the Lenders, the amount, without
duplication, by which the Aggregate Revolver Outstandings exceeds the lesser of
the Borrowing Base or the Maximum Revolver Amount.
3.2 Termination of Facility. The Borrower may terminate this Agreement
upon at least ten (10) Business Days' notice to the Administrative Agent and the
Lenders, upon (a) the payment in full of all outstanding Revolving Loans,
together with accrued interest thereon, and the cancellation and return of all
outstanding Letters of Credit, (b) the payment of the early termination fee set
forth below, (c) the payment in full in cash of all reimbursable expenses and
other Obligations, and (d) with respect to any LIBOR Rate Loans prepaid, payment
of the amounts due under Section 4.4, if any. If this Agreement is terminated at
any time prior to the Stated Termination Date, whether pursuant to this Section
or pursuant to Section 9.2, the
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Borrower shall pay to the Administrative Agent the early termination fee
determined in accordance with Fee Letter.
3.3 Waiver of Early Termination Fees. Notwithstanding the provisions of
Section 3.2 above, the Borrower shall have no obligation to pay an early
termination fee (a) if this Agreement is terminated in connection with the
refinancing of the Obligations by an Affiliate of the Administrative Agent or
(b) if the Borrower voluntarily reduces the amount of the Commitments to the
extent permitted under Section 1.2(a)(iv) of this Agreement.
3.4 [Reserved]
3.5 LIBOR Rate Loan Prepayments. In connection with any prepayment, if
any LIBOR Rate Loans are prepaid prior to the expiration date of the Interest
Period applicable thereto, the Borrower shall pay to the Lenders the amounts
described in Section 4.4.
3.6 Payments by the Borrower.
(a) All payments to be made by the Borrower shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Borrower shall be made to the
Administrative Agent for the account of the Lenders, at the account designated
by the Administrative Agent and shall be made in Dollars and in immediately
available funds, no later than 2:00 p.m. (Atlanta, Georgia time) on the date
specified herein. Any payment received by the Administrative Agent after such
time shall be deemed (for purposes of calculating interest only) to have been
received on the following Business Day and any applicable interest shall
continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period", whenever any payment is due on a day other than a Business
Day, such payment shall be due on the following Business Day, and such extension
of time shall in such case be included in the computation of interest or fees,
as the case may be.
3.7 Payments as Revolving Loans. At the election of Administrative
Agent, all payments of principal, interest, reimbursement obligations in
connection with Letters of Credit and Credit Support for Letters of Credit,
fees, premiums, reimbursable expenses and other sums payable hereunder, unless
sooner paid by the Borrower, may be paid from the proceeds of Revolving Loans
made hereunder. The Borrower hereby irrevocably authorizes the Administrative
Agent to charge the Loan Account for the purpose of paying all amounts from time
to time due hereunder and agrees that all such amounts charged shall constitute
Revolving Loans (including Non-Ratable Loans and Agent Advances).
3.8 Apportionment, Application and Reversal of Payments. Principal and
interest payments shall be apportioned ratably among the Lenders (according to
the unpaid principal balance of the Loans to which such payments relate held by
each Lender) and payments of the fees shall, as applicable, be apportioned
ratably among the Lenders, except for fees payable solely to Administrative
Agent and the Letter of Credit Issuer and except as provided in Section 11.1(b).
All payments shall be remitted to the Administrative Agent and all such payments
not relating to principal or interest of specific Loans, or not constituting
payment of specific fees, and all proceeds of Accounts or other Collateral
received by the Administrative
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Agent, shall be applied, ratably, subject to the provisions of this Agreement,
first, to pay any fees, indemnities or expense reimbursements including any
amounts relating to Bank Products then due to the Administrative Agent from the
Borrower; second, to pay any fees or expense reimbursements then due to the
Lenders from the Borrower; third, to pay interest due in respect of all
Revolving Loans, including Non-Ratable Loans and Agent Advances; fourth, to pay
or prepay principal of the Non-Ratable Loans and Agent Advances; fifth, to pay
or prepay principal of the Revolving Loans (other than Non-Ratable Loans and
Agent Advances) and unpaid reimbursement obligations in respect of Letters of
Credit; sixth, to pay an amount to Administrative Agent equal to all outstanding
Letter of Credit Obligations to be held as cash collateral for such Obligations;
and seventh, to the payment of any other Obligation. Notwithstanding anything to
the contrary contained in this Agreement, unless so directed by the Borrower, or
unless an Event of Default has occurred and is continuing, neither the
Administrative Agent nor any Lender shall apply any payments which it receives
to any LIBOR Rate Loan, except (a) on the expiration date of the Interest Period
applicable to any such LIBOR Rate Loan, or (b) in the event, and only to the
extent, that there are no outstanding Base Rate Loans and, in any event, the
Borrower shall pay LIBOR breakage losses in accordance with Section 4.4. The
Administrative Agent and the Lenders shall have the continuing and exclusive
right to apply and reverse and reapply any and all such proceeds and payments to
any portion of the Obligations.
3.9 Indemnity for Returned Payments. If after receipt of any payment
which is applied to the payment of all or any part of the Obligations, the
Administrative Agent, any Lender, the Bank or any Affiliate of the Bank is for
any reason compelled to surrender such payment or proceeds to any Person because
such payment or application of proceeds is invalidated, declared fraudulent, set
aside, determined to be void or voidable as a preference, impermissible setoff,
or a diversion of trust funds, or for any other reason, then the Obligations or
part thereof intended to be satisfied shall be revived and continued and this
Agreement shall continue in full force as if such payment or proceeds had not
been received by the Administrative Agent or such Lender and the Borrower shall
be liable to pay to the Administrative Agent and the Lenders, and hereby does
indemnify the Administrative Agent and the Lenders and hold the Administrative
Agent and the Lenders harmless for the amount of such payment or proceeds
surrendered. The provisions of this Section 3.9 shall be and remain effective
notwithstanding any contrary action which may have been taken by the
Administrative Agent or any Lender in reliance upon such payment or application
of proceeds, and any such contrary action so taken shall be without prejudice to
the Administrative Agent's and the Lenders' rights under this Agreement and
shall be deemed to have been conditioned upon such payment or application of
proceeds having become final and irrevocable. The provisions of this Section 3.9
shall survive the termination of this Agreement.
3.10 Administrative Agent's and Lenders' Books and Records; Monthly
Statements. The Administrative Agent shall record the principal amount of the
Loans owing to each Lender, the undrawn face amount of all outstanding Letters
of Credit and the aggregate amount of unpaid reimbursement obligations
outstanding with respect to the Letters of Credit from time to time on its
books. In addition, each Lender may note the date and amount of each payment or
prepayment of principal of such Lender's Loans in its books and records. Failure
by Administrative Agent or any Lender to make such notation shall not affect the
obligations of the Borrower with respect to the Loans or the Letters of Credit.
The Borrower agrees that the
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Administrative Agent's and each Lender's books and records showing the
Obligations and the transactions pursuant to this Agreement and the other Loan
Documents shall be admissible in any action or proceeding arising therefrom, and
shall constitute rebuttably presumptive proof thereof, irrespective of whether
any Obligation is also evidenced by a promissory note or other instrument. The
Administrative Agent will provide to the Borrower a monthly statement of Loans,
payments, and other transactions pursuant to this Agreement. Such statement
shall be deemed correct, accurate, and binding on the Borrower and an account
stated (except for reversals and reapplications of payments made as provided in
Section 3.8 and corrections of errors discovered by the Administrative Agent),
unless the Borrower notifies the Administrative Agent in writing to the contrary
within forty-five (45) days after such statement is rendered. In the event a
timely written notice of objections is given by the Borrower, only the items to
which exception is expressly made will be considered to be disputed by the
Borrower.
ARTICLE 4
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes.
(a) Any and all payments by any Credit Party to each Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for any Taxes.
In addition, the Borrower shall pay all Other Taxes.
(b) Each Credit Party agrees to indemnify and hold harmless
each Lender and the Administrative Agent for the full amount of Taxes or Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section) paid by any Lender or the Administrative Agent and
any liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 30 days after the date such Lender or the Administrative
Agent makes written demand therefor.
(c) If a Credit Party shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section) such Lender or the Administrative Agent, as the case may
be, receives an amount equal to the sum it would have received had no
such deductions or withholdings been made;
(ii) such Credit Party shall make such deductions and
withholdings;
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(iii) such Credit Party shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) such Credit Party shall also pay to each Lender or the
Administrative Agent for the account of such Lender, at the time
interest is paid, all additional amounts which the respective Lender
specifies as necessary to preserve the after-tax yield such Lender
would have received if such Taxes or Other Taxes had not been imposed.
(d) At the Administrative Agent's request, within 30 days
after the date of any payment by a Credit Party of Taxes or Other Taxes, the
Borrower shall furnish the Administrative Agent the original or a certified copy
of a receipt evidencing payment thereof, or other evidence of payment
satisfactory to the Administrative Agent.
(e) If a Credit Party is required to pay additional amounts to
any Lender or the Administrative Agent pursuant to subsection (c) of this
Section, then such Lender shall use reasonable efforts (consistent with legal
and regulatory restrictions) to change the jurisdiction of its lending office so
as to eliminate any such additional payment by such Credit Party which may
thereafter accrue, if such change in the judgment of such Lender is not
otherwise disadvantageous to such Lender.
4.2 Illegality.
(a) If any Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable lending office to make
LIBOR Rate Loans, then, on notice thereof by that Lender to the Borrower through
the Administrative Agent, any obligation of that Lender to make LIBOR Rate Loans
shall be suspended until that Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist.
(b) If a Lender determines that it is unlawful to maintain any
LIBOR Rate Loan, the Borrower shall, upon its receipt of notice of such fact and
demand from such Lender (with a copy to the Administrative Agent), prepay in
full such LIBOR Rate Loans of that Lender then outstanding, together with
interest accrued thereon and amounts required under Section 4.4, either on the
last day of the Interest Period thereof, if that Lender may lawfully continue to
maintain such LIBOR Rate Loans to such day, or immediately, if that Lender may
not lawfully continue to maintain such LIBOR Rate Loans. If the Borrower is
required to so prepay any LIBOR Rate Loans, then concurrently with such
prepayment, the Borrower shall borrow from the affected Lender, in the amount of
such repayment, a Base Rate Loan.
4.3 Increased Costs and Reduction of Return.
(a) If any Lender determines that due to either (i) the
introduction of or any change in the interpretation of any law or regulation or
(ii) the compliance by that Lender with any guideline or request from any
central bank or other Governmental Authority (whether
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or not having the force of law), there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining any LIBOR Rate
Loans, then the Borrower shall be liable for, and shall from time to time, upon
demand (with a copy of such demand to be sent to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender, additional amounts
as are sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by such Lender or any corporation or other entity controlling such
Lender with any Capital Adequacy Regulation, affects or would affect the amount
of capital required or expected to be maintained by such Lender or any
corporation or other entity controlling such Lender and (taking into
consideration such Lender's or such corporation's or other entity's policies
with respect to capital adequacy and such Lender's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitments, loans, credits or obligations under this Agreement, then, upon
demand of such Lender to the Borrower through the Administrative Agent, the
Borrower shall pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender for such
increase.
(c) Notwithstanding anything to the contrary contained herein,
the Borrower shall not be required to make any payments to any Lender or the
Administrative Agent pursuant to this Section relating to increased costs or a
reduction in rate of return incurred more than six (6) months prior to such
Person's request for additional payment except for retroactive application of
such law, rule or regulation, in which case the Borrower is required to make
such payments so long as such Person makes a request therefor within six (6)
months of the public announcement of such retroactive application.
(d) If a Credit Party is required to pay additional amounts to
any Lender or the Administrative Agent pursuant to this Section, then such
Lender shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its lending office so as to
eliminate any such additional payment by such Credit Party which may thereafter
accrue, if such change in the judgment of such Lender is not otherwise
disadvantageous to such Lender.
4.4 Funding Losses. The Borrower shall reimburse each Lender and hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of:
(a) the failure of the Borrower to make on a timely basis any
payment of principal of any LIBOR Rate Loan;
(b) the failure of the Borrower to borrow, continue or convert
a Loan after the Borrower has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Continuation/Conversion; or
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(c) the prepayment or other payment (including after
acceleration thereof) of any LIBOR Rate Loans on a day that is not the
last day of the relevant Interest Period (unless Agent shall have
failed to comply with the Borrower's instructions pursuant to Section
3.8);
including any such loss of anticipated profit and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain its
LIBOR Rate Loans or from fees payable to terminate the deposits from which such
funds were obtained. Borrower shall also pay any customary administrative fees
charged by any Lender in connection with the foregoing.
4.5 Inability to Determine Rates. If the Administrative Agent
reasonably determines that for any reason adequate and reasonable means do not
exist for determining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan, or that the LIBOR Rate for any requested
Interest Period with respect to a proposed LIBOR Rate Loan does not adequately
and fairly reflect the cost to the Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans
hereunder shall be suspended until the Administrative Agent revokes such notice
in writing. Upon receipt of such notice, the Borrower may revoke any Notice of
Borrowing or Notice of Continuation/Conversion then submitted by it. If the
Borrower does not revoke such Notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Borrower, in the amount specified in the
applicable notice submitted by the Borrower, but such Loans shall be made,
converted or continued as Base Rate Loans instead of LIBOR Rate Loans.
4.6 Certificates of Administrative Agent. If any Lender claims
reimbursement or compensation under this Article 4, Administrative Agent shall
determine the amount thereof and shall deliver to the Borrower (with a copy to
the affected Lender) a certificate setting forth in reasonable detail the amount
payable to the affected Lender, and such certificate shall be conclusive and
binding on the Borrower in the absence of manifest error.
4.7 Replacement of Lender. In the event any Lender delivers to the
Borrower any notice in accordance with Section 4.2 or 4.3, then the Borrower
shall have the right, if no Default or Event of Default then exists, to replace
such Lender (the "Replaced Lender") with one or more additional banks or
financial institutions (collectively, the "Replacement Lender"), provided, that
(a) the Replacement Lender is reasonably acceptable to the Administrative Agent,
(b) at the time of any replacement pursuant to this Section 4.7, the Replacement
Lender shall enter into one or more Assignment and Acceptance agreements
pursuant to, and in accordance with the terms of, Section 11.2 (and with all
processing and recordation fees payable pursuant to said Section 11.2 to be paid
by the Replacement Lender or, at its option, the Borrower) pursuant to which the
Replacement Lender shall acquire all of the rights and obligations of the
Replaced Lender hereunder and, in connection therewith, shall pay to the
Replaced Lender in respect thereof an amount equal to the sum of (i) the
principal of, and all accrued interest on, all outstanding Loans of the Replaced
Lender, and (ii) all accrued, but theretofore unpaid, fees owing to the Replaced
Lender pursuant to Section 2.5, (c) all other obligations of the Borrower owing
to the Replaced Lender (including all other obligations, if any, owing pursuant
to Sections 4.2 and 4.3) shall be paid in full to such
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Replaced Lender concurrently with such replacement and (d) the Administrative
Agent and the Lenders shall not be obligated to assist the Borrower in
identifying any Replacement Lender.
4.8 Survival. The agreements and obligations of the Borrower in this
Article 4 shall survive the payment of all other Obligations.
ARTICLE 5
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
5.1 Books and Records. The Borrower shall maintain, at all times,
correct and complete books, records and accounts in which complete, correct and
timely entries are made of its transactions in accordance with GAAP applied
consistently with the audited Financial Statements required to be delivered
pursuant to Section 5.2(a). The Borrower shall, by means of appropriate entries,
reflect in such accounts and in all Financial Statements proper liabilities and
reserves for all taxes and proper provision for depreciation and amortization of
property and bad debts, all in accordance with GAAP. The Borrower shall maintain
at all times books and records pertaining to the Collateral in such detail, form
and scope as the Administrative Agent or any Lender shall reasonably require,
including, but not limited to, records of (a) all payments received and all
credits and extensions granted with respect to the Accounts; (b) the return,
rejection, repossession, stoppage in transit, loss, damage, or destruction of
any Inventory; and (c) all other dealings affecting the Collateral.
5.2 Financial Information. The Borrower shall promptly furnish to each
Lender, all such financial information as the Administrative Agent shall
reasonably request. Without limiting the foregoing, the Borrower will furnish to
the Administrative Agent, in sufficient copies for distribution by the
Administrative Agent to each Lender, in such detail as the Administrative Agent
or the Lenders shall request, the following:
(a) As soon as available, but in any event not later than one
hundred twenty (120) days after the close of each Fiscal Year, consolidated
audited and consolidating unaudited balance sheets, and income statements, cash
flow statements and changes in stockholders' equity for the Borrower and its
Subsidiaries for such Fiscal Year, and the accompanying notes thereto, setting
forth in each case in comparative form figures for the previous Fiscal Year, all
in reasonable detail, fairly presenting the financial position and the results
of operations of the Borrower and its consolidated Subsidiaries as at the date
thereof and for the Fiscal Year then ended, and prepared in accordance with
GAAP. Such audited statements shall be examined in accordance with generally
accepted auditing standards by and, in the case of such statements performed on
a consolidated basis, accompanied by a report thereon unqualified in any respect
of independent certified public accountants selected by the Borrower and
reasonably satisfactory to the Administrative Agent. The Borrower,
simultaneously with retaining such independent public accountants to conduct
such annual audit, shall send a letter to such accountants, with a copy to the
Administrative Agent and the Lenders, notifying such accountants that one of the
primary purposes for retaining such accountants' services and having audited
financial statements prepared by them is for use by the Administrative Agent and
the Lenders. At the request of the Administrative Agent, the Borrower will
cooperate in arranging
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meetings or telephone conferences from time to time with the Borrower's
certified public accountants and, by this provision, authorizes those
accountants to disclose to the Administrative Agent any and all financial
statements and other supporting financial documents and schedules relating to
the Borrower and to discuss directly with the Administrative Agent the finances
and affairs of the Borrower.
(b) As soon as available, but in any event not later than
forty-five (45) days after the end of each month, consolidated and consolidating
unaudited balance sheets of the Borrower and its consolidated Subsidiaries as at
the end of such month, and consolidated and consolidating unaudited income
statements and cash flow statements for the Borrower and its consolidated
Subsidiaries for such month and for the period from the beginning of the Fiscal
Year to the end of such month, all in reasonable detail, fairly presenting the
financial position and results of operations of the Borrower and its
consolidated Subsidiaries as at the date thereof and for such periods, and, in
each case, in comparable form, figures for the corresponding period in the prior
Fiscal Year and in the Borrower's budget, and prepared in accordance with GAAP
applied consistently with the audited Financial Statements required to be
delivered pursuant to Section 5.2(a). The Borrower shall certify by a
certificate signed by its chief financial officer that all such statements have
been prepared in accordance with GAAP and present fairly the Borrower's
financial position as at the dates thereof and its results of operations for the
periods then ended, subject to normal year-end adjustments.
(c) With each of the audited Financial Statements delivered
pursuant to Section 5.2(a), a certificate of the independent certified public
accountants that examined such statement to the effect that they have reviewed
and are familiar with this Agreement and that, in examining such Financial
Statements, they did not become aware of any fact or condition which then
constituted a Default or Event of Default with respect to a financial covenant,
except for those, if any, described in reasonable detail in such certificate.
(d) With each of the annual audited Financial Statements
delivered pursuant to Section 5.2(a), and within forty-five (45) days after the
end of each month, a certificate of the chief financial officer of the Borrower
in substantially the form of Exhibit H attached hereto setting forth in
reasonable detail the calculations required to establish that the Borrower was
in compliance with the covenants set forth in Sections 7.22 through 7.25 during
the period covered in such Financial Statements and as at the end thereof.
Within forty-five (45) days after the end of each month, a certificate of the
chief financial officer of the Borrower stating that, except as explained in
reasonable detail in such certificate, (A) all of the representations and
warranties of the Borrower contained in this Agreement and the other Loan
Documents are correct and complete in all material respects as at the date of
such certificate as if made at such time, except for those that speak as of a
particular date, (B) the Borrower is, at the date of such certificate, in
compliance in all material respects with all of its respective covenants and
agreements in this Agreement and the other Loan Documents, and (C) no Default or
Event of Default then exists or existed during the period covered by the
Financial Statements for such month. If such certificate discloses that a
representation or warranty is not correct or complete, or that a covenant has
not been complied with, or that a Default or Event of Default existed or exists,
such certificate shall set forth what action the Borrower has taken or proposes
to take with respect thereto.
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(e) No sooner than ninety (90) days prior to and not later
than the beginning of each Fiscal Year, annual forecasts (to include forecasted
consolidated and consolidating balance sheets, income statements and cash flow
statements) for the Borrower and its Subsidiaries as at the end of and for each
month of such Fiscal Year.
(f) Promptly after filing with the PBGC and the IRS, a copy of
each annual report or other filing filed with respect to each Plan of the
Borrower.
(g) Promptly upon the filing thereof, copies of all reports,
if any, to or other documents filed by the Borrower or any of its Subsidiaries
with the Securities and Exchange Commission under the Exchange Act, and all
reports, notices, or statements sent or received by the Borrower or any of its
Subsidiaries to or from the holders of any equity interests of the Borrower
(other than routine non-material correspondence sent by shareholders of the
Borrower to the Borrower) or any such Subsidiary or of any Debt of the Borrower
or any of its Subsidiaries registered under the Securities Act of 1933 or to or
from the trustee under any indenture under which the same is issued.
(h) As soon as available, but in any event not later than 15
days after the Borrower's receipt thereof, a copy of all management reports and
management letters prepared for the Borrower by any independent certified public
accountants of the Borrower.
(i) Promptly after their preparation, copies of any and all
proxy statements, financial statements, and reports which the Borrower makes
available to its shareholders.
(j) If requested by the Administrative Agent, promptly after
filing with the IRS, a copy of each tax return filed by the Borrower or by any
of its Subsidiaries.
(k) As soon as available, but in no event later than ten (10)
days after the last Business Day of any week, a Borrowing Base Certificate
supporting information in accordance with Section 4 of the Security Agreement as
of such week.
(l) Such additional information as the Administrative Agent
and/or any Lender may from time to time reasonably request regarding the
financial and business affairs of the Borrower or any Subsidiary.
5.3 Notices to the Lenders. The Borrower shall notify the
Administrative Agent and the Lenders in writing of the following matters at the
following times:
(a) Immediately after becoming aware of any Default or Event
of Default;
(b) Immediately after becoming aware of the assertion by the
holder of any capital stock of the Borrower or of any Subsidiary or the
holder of any Debt of the Borrower or any Subsidiary in a face amount
in excess of $500,000 that a default exists with respect thereto or
that the Borrower or such Subsidiary is not in compliance with the
terms thereof, or the threat or commencement by such holder of any
enforcement action because of such asserted default or non-compliance;
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(c) Immediately after becoming aware of any event or
circumstance which could have a Material Adverse Effect;
(d) Immediately after becoming aware of any pending or
threatened action, suit, or proceeding, by any Person, or any pending
or threatened investigation by a Governmental Authority, which could
reasonably be expected to have a Material Adverse Effect;
(e) Immediately after becoming aware of any pending or
threatened strike, work stoppage, unfair labor practice claim, or other
labor dispute affecting the Borrower or any of its Subsidiaries in a
manner which could reasonably be expected to have a Material Adverse
Effect;
(f) Immediately after becoming aware of any violation of any
law, statute, regulation, or ordinance of a Governmental Authority
affecting the Borrower or any Subsidiary which could reasonably be
expected to have a Material Adverse Effect;
(g) Immediately after receipt of any notice of any violation
by the Borrower or any of its Subsidiaries of any Environmental Claim
(except in respect of the Ybor Property) and which could reasonably be
expected to have a Material Adverse Effect or that any Governmental
Authority has asserted in writing that the Borrower or any Subsidiary
is not in compliance with any Environmental Law or is investigating the
Borrower's or such Subsidiary's compliance therewith;
(h) Immediately after receipt of any written notice that the
Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the Release or threatened Release of any Contaminant or
that the Borrower or any Subsidiary is subject to investigation by any
Governmental Authority evaluating whether any remedial action is needed
to respond to the Release or threatened Release of any Contaminant
which, in either case, is reasonably likely to give rise to liability
in excess of $250,000;
(i) Immediately after receipt of any written notice of the
imposition of any Environmental Lien against any property of the
Borrower or any of its Subsidiaries(except in respect of the Ybor
Property);
(j) Any change in the Borrower's name, state of organization,
locations of Collateral, or form of organization, trade names under
which the Borrower create Accounts, or to which instruments in payment
of Accounts may be made payable, in each case at least thirty (30) days
prior thereto;
(k) Within ten (10) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know, that an ERISA Event or a
prohibited transaction (as defined in Sections 406 of ERISA and 4975 of
the Code) has occurred, and, when known, any action taken or threatened
by the IRS, the DOL or the PBGC with respect thereto;
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(l) Upon request, or, in the event that such filing reflects a
significant change with respect to the matters covered thereby, within
three (3) Business Days after the filing thereof with the PBGC, the DOL
or the IRS, as applicable, copies of the following: (i) each annual
report (form 5500 series), including Schedule B thereto, filed with the
PBGC, the DOL or the IRS with respect to each Plan, (ii) a copy of each
funding waiver request filed with the PBGC, the DOL or the IRS with
respect to any Plan and all communications received by the Borrower or
any ERISA Affiliate from the PBGC, the DOL or the IRS with respect to
such request, and (iii) a copy of each other filing or notice filed
with the PBGC, the DOL or the IRS, with respect to each Plan by either
the Borrower or any ERISA Affiliate;
(m) Upon request, copies of each actuarial report for any Plan
or Multi-employer Plan and annual report for any Multi-employer Plan;
and within three (3) Business Days after receipt thereof by the
Borrower or any ERISA Affiliate, copies of the following: (i) any
notices of the PBGC's intention to terminate a Plan or to have a
trustee appointed to administer such Plan; (ii) any favorable or
unfavorable determination letter from the IRS regarding the
qualification of a Plan under Section 401(a) of the Code; or (iii) any
notice from a Multi-employer Plan regarding the imposition of
withdrawal liability;
(n) Within three (3) Business Days after the occurrence
thereof: (i) any changes in the benefits of any existing Plan which
increase the Borrower's annual costs with respect thereto by an amount
in excess of $250,000, or the establishment of any new Plan or the
commencement of contributions to any Plan to which the Borrower or any
ERISA Affiliate was not previously contributing; or (ii) any failure by
the Borrower or any ERISA Affiliate to make a required installment or
any other required payment under Section 412 of the Code on or before
the due date for such installment or payment; or
(o) Within three (3) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that any of the following
events has or will occur: (i) a Multi-employer Plan has been or will be
terminated; (ii) the administrator or plan sponsor of a Multi-employer
Plan intends to terminate a Multi-employer Plan; or (iii) the PBGC has
instituted or will institute proceedings under Section 4042 of ERISA to
terminate a Multi-employer Plan.
Each notice given under this Section shall describe the subject matter
thereof in reasonable detail, and shall set forth the action that the Borrower,
its Subsidiary, or any ERISA Affiliate, as applicable, has taken or proposes to
take with respect thereto.
ARTICLE 6
GENERAL WARRANTIES AND REPRESENTATIONS
Each of the Credit Parties warrants and represents to the
Administrative Agent and the Lenders that except as hereafter disclosed to and
accepted by the Administrative Agent and the Required Lenders in writing:
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6.1 Authorization, Validity, and Enforceability of this Agreement and
the Loan Documents. Each of the Credit Parties has the power and authority to
execute, deliver and perform this Agreement and the other Loan Documents to
which it is a party, to incur the Obligations, and to grant to the
Administrative Agent Liens upon and security interests in the Collateral. Each
of the Credit Parties has taken all necessary action (including obtaining
approval of its stockholders if necessary) to authorize its execution, delivery,
and performance of this Agreement and the other Loan Documents to which it is a
party. This Agreement and the other Loan Documents to which it is a party have
been duly executed and delivered by the Credit Parties, and constitute the
legal, valid and binding obligations of each, enforceable against it in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law). Each of the Credit Parties' execution, delivery, and performance of
this Agreement and the other Loan Documents to which it is a party do not and
will not conflict with, or constitute a violation or breach of, or result in the
imposition of any Lien upon the property of such Credit Party or any of the
Consolidated Parties, by reason of the terms of (a) any material contract,
mortgage, lease, agreement, indenture, or instrument to which a Credit Party is
a party or which is binding upon it, (b) any material Requirement of Law
applicable to a Credit Party or any of the Consolidated Parties, or (c) the
certificate or articles of incorporation or by-laws or the limited liability
company or limited partnership agreement of a Credit Party or any of the
Consolidated Parties.
6.2 Validity and Priority of Security Interest. The Liens granted to
the Administrative Agent in the Collateral under the Loan Documents constitute
first priority Liens, having priority over all other Liens on the Collateral,
except for those Liens identified in clauses (c), (d) and (e) of the definition
of Permitted Liens. The Credit Parties have paid or discharged all lawful claims
which, if unpaid, might become a Lien on any Property of the Credit Parties that
is not a Permitted Lien.
6.3 Organization and Qualification. Each Credit Party (a) is duly
organized or incorporated and validly existing in good standing under the laws
of the state of its organization or incorporation, (b) is qualified to do
business and is in good standing in the jurisdictions set forth on Schedule 6.3
(or, with respect to States other than Florida and Texas, will be qualified
within thirty (30) days after the Closing Date) which are the only jurisdictions
in which qualification is necessary in order for it to own or lease its property
and conduct its business and (c) has all requisite power and authority to
conduct its business and to own its property, except to the extent that the
failure to so qualify or be in good standing could not reasonably be expected to
have a Material Adverse Effect.
6.4 Corporate Name; Prior Transactions. Except as set forth in Schedule
6.4, no Credit Party has, during the past five (5) years, been known by or used
any other corporate or fictitious name, or been a party to any merger or
consolidation, or acquired all or substantially all of the assets of any Person,
or acquired any of its property outside of the ordinary course of business.
6.5 Subsidiaries and Affiliates. Schedule 6.5 is a correct and complete
list of the name and relationship to the Credit Parties of each and all of the
Consolidated Parties and
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other Affiliates. Each Consolidated Party is (a) duly incorporated or organized
and validly existing in good standing under the laws of its state of
incorporation or organization set forth on Schedule 6.5, and (b) qualified to do
business and in good standing in each jurisdiction in which the failure to so
qualify or be in good standing could reasonably be expected to have a material
adverse effect on any such Consolidated Party's business, operations, prospects,
property, or condition (financial or otherwise) and (c) has all requisite power
and authority to conduct its business and own its property.
6.6 Financial Statements and Projections.
(a) The Borrower has delivered to the Administrative Agent and
the Lenders the audited balance sheet and related statements of income, retained
earnings, cash flows, and changes in stockholders equity for the Borrower and
the Consolidated Parties as of December 31, 1999, and for the Fiscal Year then
ended, accompanied by the report thereon of the Borrower's independent certified
public accountants, Pricewaterhousecoopers, LLC. The Borrower has also delivered
to the Administrative Agent and the Lenders the unaudited balance sheet and
related statements of income and cash flows for the Borrower and the
Consolidated Parties as of September 30, 2000, prepared by Deloitte & Touche,
LLC. All such financial statements have been prepared in accordance with GAAP
and present accurately and fairly in all material respects the financial
position of the Borrower and the Consolidated Parties as at the dates thereof
and their results of operations for the periods then ended.
(b) The Latest Projections when submitted to the Lenders as
required herein represent the Borrower's best estimate of the future financial
performance of the Borrower and the Consolidated Parties for the periods set
forth therein. The Latest Projections have been prepared on the basis of the
assumptions set forth therein, which the Borrower believes are fair and
reasonable in light of current and reasonably foreseeable business conditions at
the time submitted to the Lenders.
(c) The pro forma balance sheet of the Borrower as at
September 30, 2000, attached hereto as Exhibit C, presents fairly and accurately
the Borrower's financial condition as at such date after giving effect to the
Securities Repurchase Loans as contemplated by the Borrower as of the Closing
Date, and has been prepared in accordance with GAAP.
6.7 Capitalization. The Borrower's authorized capital stock consists of
250,000,000 shares of common stock, par value $.01 per share, of which
42,155,869 shares are validly issued and outstanding, fully paid and
non-assessable.
6.8 Solvency. Each of the Credit Parties is Solvent prior to and after
giving effect to the Borrowings to be made on the Closing Date and the issuance
of the Letters of Credit to be issued on the Closing Date, and shall remain
Solvent during the term of this Agreement.
6.9 Debt. After giving effect to the making of the Revolving Loans to
be made on the Closing Date, the Borrower and the Consolidated Parties have no
Debt, except (a) the Obligations, and (b) Debt described on Schedule 6.9 and
Debt permitted under Section 7.13.
6.10 [Reserved]
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6.11 [Reserved]
6.12 [Reserved]
6.13 Trade Names. All trade names or styles under which the Credit
Parties will sell Inventory or create Accounts, or to which instruments in
payment of Accounts may be made payable, are listed on Schedule 6.13.
6.14 Litigation. Except as set forth on Schedule 6.14, there is no
pending, or to the best of the Credit Parties' knowledge threatened, action,
suit, proceeding, or counterclaim by any Person, or to the best of the Credit
Parties' knowledge, investigation by any Governmental Authority, or any basis
for any of the foregoing, which could reasonably be expected to have a Material
Adverse Effect.
6.15 Labor Disputes. Except as set forth on Schedule 6.15, as of the
Closing Date (a) there is no collective bargaining agreement or other labor
contract covering employees of the Credit Parties or any of the Consolidated
Parties, (b) no such collective bargaining agreement or other labor contract is
scheduled to expire during the term of this Agreement, (c) no union or other
labor organization is seeking to organize, or to be recognized as, a collective
bargaining unit of employees of the Credit Parties or any of the Consolidated
Parties or for any similar purpose, and (d) there is no pending or (to the best
of the Credit Parties' knowledge) threatened, strike, work stoppage, material
unfair labor practice claim, or other material labor dispute against or
affecting the Credit Parties or any of the Consolidated Parties or their
employees.
6.16 Environmental Laws. Except in respect of the Ybor Property, the
Consolidated Parties have complied in all material respects with all
Environmental Laws and none of the Consolidated Parties nor any of their
presently owned real property or presently conducted operations, nor their
previously owned real property or prior operations, is subject to any
enforcement order from or liability agreement with any Governmental Authority or
private Person respecting (i) compliance with any Environmental Law or (ii) any
potential liabilities and costs or remedial action arising from the Release or
threatened Release of a Contaminant.
(a) The Consolidated Parties have obtained all permits
necessary for their current operations under Environmental Laws, and all such
permits are in good standing and the Borrower and its Subsidiaries are in
compliance with all material terms and conditions of such permits.
(b) None of the Consolidated Parties, nor, to the best of the
Credit Parties' knowledge, any of its predecessors in interest, has in violation
of applicable law stored, treated or disposed of any hazardous waste.
(c) None of the Consolidated Parties has received any summons,
complaint, order or similar written notice indicating that it is not currently
in compliance with, or that any Governmental Authority is investigating its
compliance with, any Environmental Laws or that it is or may be liable to any
other Person as a result of a Release or threatened Release of a Contaminant.
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(d) To the best of the Credit Parties' knowledge, none of the
present or past operations of the Consolidated Parties is the subject of any
investigation by any Governmental Authority evaluating whether any remedial
action is needed to respond to a Release or threatened Release of a Contaminant.
6.17 No Violation of Law. None of the Consolidated Parties is in
violation of any law, statute, regulation, ordinance, judgment, order, or decree
applicable to it which violation could reasonably be expected to have a Material
Adverse Effect.
6.18 No Default. After giving effect to the initial Revolving Loan
under this Agreement, none of the Consolidated Parties is in default with
respect to any note, indenture, loan agreement, mortgage, lease, deed, or other
agreement to which the Consolidated Parties is a party or by which it is bound,
which default could reasonably be expected to have a Material Adverse Effect.
6.19 ERISA Compliance. Except as specifically disclosed in Schedule
6.19:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law.
Each Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and to the best knowledge
of the Credit Parties, nothing has occurred which would cause the loss of such
qualification. The Borrower and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(e) There are no pending or, to the best knowledge of the
Credit Parties, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect.
(f) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multi-employer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
6.20 Taxes. The Consolidated Parties have filed all federal and other
tax returns and reports required to be filed, and have paid all federal and
other taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or
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assets otherwise due and payable unless such unpaid taxes and assessments would
constitute a Permitted Lien.
6.21 Regulated Entities. None of the Consolidated Parties, any Person
controlling the Borrower, or any Subsidiary, is an "Investment Company" within
the meaning of the Investment Company Act of 1940. The Borrower is not subject
to regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code or law,
or any other federal or state statute or regulation limiting its ability to
incur indebtedness.
6.22 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for Permitted Uses. None of the Consolidated Parties is
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.
6.23 Copyrights, Patents, Trademarks and Licenses, etc. Each of the
Credit Parties owns or is licensed or otherwise has the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, licenses, rights of way, authorizations and other rights that are
reasonably necessary for the operation of its businesses, without conflict with
the rights of any other Person. To the best knowledge of the Credit Parties, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the
Consolidated Parties infringes upon any rights held by any other Person. No
claim or litigation regarding any of the foregoing is pending or threatened, and
no patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Credit
Parties, proposed, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
6.24 No Material Adverse Change. No Material Adverse Effect has
occurred since the latest date of the Financial Statements delivered to the
Lenders.
6.25 Full Disclosure. None of the representations or warranties made by
the Credit Parties in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on behalf of the
Credit Parties in connection with the Loan Documents (including the offering and
disclosure materials delivered by or on behalf of the Credit Parties to the
Lenders prior to the Closing Date), contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
are made, not misleading as of the time when made or delivered.
6.26 [Reserved]
6.27 Bank Accounts. Schedule 6.27 contains as of the Closing Date a
complete and accurate list of all bank accounts maintained by the Credit Parties
with any bank or other financial institution.
6.28 Governmental Authorization. Except for filings to perfect the
Liens created by the Security Agreement, no approval, consent, exemption,
authorization, or other
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action by, or notice to, or filing with, any Governmental Authority or other
Person is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Credit Parties of this Agreement or
any other Loan Document.
ARTICLE 7
AFFIRMATIVE AND NEGATIVE COVENANTS
Each of the Credit Parties covenants to the Administrative Agent and
each Lender that so long as any of the Obligations remain outstanding or this
Agreement is in effect:
7.1 Taxes and Other Obligations. Each Credit Parties shall, and shall
cause each of the Consolidated Parties to, (a) file when due all tax returns and
other reports which it is required to file; (b) pay, or provide for the payment,
when due, of all taxes, fees, assessments and other governmental charges against
it or upon its property, income and franchises, make all required withholding
and other tax deposits, and establish adequate reserves for the payment of all
such items, and provide to the Administrative Agent and the Lenders, upon
request, satisfactory evidence of its timely compliance with the foregoing; and
(c) pay when due all Debt owed by it and all claims of materialmen, mechanics,
carriers, warehousemen, landlords, processors and other like Persons, and all
other indebtedness owed by it and perform and discharge in a timely manner all
other obligations undertaken by it; provided, however, that so long as the
Borrower has notified the Administrative Agent in writing, none of the
Consolidated Parties need pay any tax, fee, assessment, or governmental charge
(i) it is contesting in good faith by appropriate proceedings diligently
pursued, (ii) as to which such Consolidated Parties has established proper
reserves as required under GAAP, and (iii) the nonpayment of which does not
result in the imposition of a Lien (other than a Permitted Lien).
7.2 Legal Existence and Good Standing. Each Credit Party shall maintain
its legal existence and its qualification and good standing in all jurisdictions
in which the failure to maintain such existence and qualification or good
standing could reasonably be expected to have a Material Adverse Effect.
7.3 Compliance with Law and Agreements; Maintenance of Licenses. Each
Credit Party shall comply in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act and all Environmental Laws).
Each Credit Party shall obtain and maintain all licenses, permits, franchises,
and governmental authorizations necessary to own its property and to conduct its
business as conducted on the Closing Date. No Credit Party shall modify, amend
or alter its certificate or articles of incorporation, or its limited liability
company operating agreement or limited partnership agreement, as applicable,
other than in a manner which does not adversely affect the rights of the Lenders
or the Administrative Agent.
7.4 Maintenance of Property; Inspection of Property.
(a) Each Credit Party shall maintain all of its property
necessary and useful in the conduct of its business, in good operating condition
and repair, ordinary wear and tear excepted.
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(b) Upon reasonable notice and during normal business hours,
each Credit Party will, and will cause each of its Subsidiaries to, permit
representatives appointed by the Administrative Agent, including, without
limitation, independent accountants, agents, attorneys, and appraisers to visit
and inspect its property, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and record any
information such representative obtains and shall permit the Administrative
Agent or its representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the
officers, employees and representatives of such Person. The Credit Parties agree
that the Administrative Agent, and its representatives, may conduct four (4)
field examinations of the Collateral each fiscal year of the Borrower during the
term of the Credit Agreement, at the expense of the Credit Parties; provided,
however, when an Event of Default exists, the Administrative Agent or any Lender
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice.
7.5 Insurance.
(a) Each Credit Party shall maintain with financially sound
and reputable insurers having a rating of at least A+ or better by Best Rating
Guide, insurance against loss or damage by fire with extended coverage; theft,
burglary, pilferage and loss in transit; public liability and third party
property damage; larceny, embezzlement or other criminal liability; business
interruption; public liability and third party property damage; and such other
hazards or of such other types as is customary for Persons engaged in the same
or similar business, as the Administrative Agent, in its discretion, or acting
at the direction of the Required Lenders, shall specify, in amounts, and under
policies reasonably acceptable to the Administrative Agent and the Required
Lenders.
(b) Each Credit Party shall cause the Administrative Agent,
for the ratable benefit of the Administrative Agent and the Lenders, to be named
as secured party or mortgagee and sole loss payee or additional insured, in a
manner acceptable to the Administrative Agent. Each policy of insurance shall
contain a clause or endorsement requiring the insurer to give not less than
thirty (30) days' prior written notice to the Administrative Agent in the event
of cancellation of the policy for any reason whatsoever and a clause or
endorsement stating that the interest of the Administrative Agent shall not be
impaired or invalidated by any act or neglect of a Credit Party or the owner of
any Real Estate for purposes more hazardous than are permitted by such policy.
All premiums for such insurance shall be paid by the Credit Parties when due,
and certificates of insurance and, if requested by the Administrative Agent or
any Lender, photocopies of the policies, shall be delivered to the
Administrative Agent, in each case in sufficient quantity for distribution by
the Administrative Agent to each of the Lenders. If a Credit Party fails to
procure such insurance or to pay the premiums therefor when due, the
Administrative Agent may, and at the direction of the Required Lenders shall, do
so from the proceeds of Revolving Loans.
7.6 Insurance and Condemnation Proceeds. Each Credit Party shall
promptly notify the Administrative Agent and the Lenders of any material loss,
damage, or destruction to the Collateral, whether or not covered by insurance.
The Administrative Agent is hereby
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authorized to collect all insurance and condemnation proceeds in respect of
Collateral directly and to apply or remit them as follows:
(i) With respect to insurance and condemnation
proceeds relating to Collateral other than Fixed Assets, after
deducting from such proceeds the reasonable expenses, if any,
incurred by the Administrative Agent in the collection or
handling thereof, the Administrative Agent shall apply such
proceeds, ratably, to the reduction of the Obligations in the
order provided for in Section 3.8.
(ii) With respect to insurance and condemnation
proceeds relating to Collateral consisting of Fixed Assets,
the Administrative Agent shall permit or require the Borrower
to use such proceeds, or any part thereof, to replace, repair,
restore or rebuild the relevant Fixed Assets in a diligent and
expeditious manner with materials and workmanship of
substantially the same quality as existed before the loss,
damage or destruction so long as (1) no Default or Event of
Default has occurred and is continuing, (2) the aggregate
proceeds do not exceed $100,000 and (3) the Borrower first (i)
provides the Administrative Agent and the Required Lenders
with plans and specifications for any such repair or
restoration which shall be reasonably satisfactory to the
Administrative Agent and the Required Lenders and (ii)
demonstrates to the reasonable satisfaction of the
Administrative Agent and the Required Lenders that the funds
available to it will be sufficient to complete such project in
the manner provided therein.
7.7 Environmental Laws. Each Credit Party shall conduct its business in
compliance with all Environmental Law applicable to it, including those relating
to the generation, handling, use, storage, and disposal of any Contaminant. Each
Credit Party shall take prompt and appropriate action to respond to any
non-compliance with Environmental Laws (except in respect of the Ybor Property)
and shall regularly report to the Administrative Agent on such response.
7.8 Compliance with ERISA. Each Credit Party shall: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law; (b) cause each Plan which is
qualified under Section 401(a) of the Code to maintain such qualification; (c)
make all required contributions to any Plan subject to Section 412 of the Code;
(d) not engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan; and (e) not engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
7.9 Mergers, Consolidations or Sales. The Credit Parties will not
permit any Consolidated Party:
(a) to enter into any transaction of merger or consolidation
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, notwithstanding the foregoing provisions of this
Section 7.9, (i) the Borrower may merge or consolidate with any of its
Subsidiaries provided that (A) the Borrower shall be the continuing or surviving
corporation, (B) the Credit Parties shall cause to be executed and delivered
such documents, instruments and
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certificates as the Administrative Agent may request in order to maintain the
perfection and priority of the Administrative Agent's liens on the assets of the
Credit Parties as required by Section 7.14 after giving effect to such
transaction and (C) after giving effect to such transaction, no Default or Event
of Default exists, (ii) any Credit Party other than the Borrower may merge or
consolidate with any other Credit Party other than the Borrower provided that
(A) the Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Administrative Agent may request in order to
maintain the perfection and priority of the Administrative Agent's liens on the
assets of the Credit Parties as required by Section 6(f) of the Security
Agreement after giving effect to such transaction and (B) after giving effect to
such transaction, no Default or Event of Default exists, (iii) any Consolidated
Party which is not a Credit Party may be merged or consolidated with or into any
Credit Party provided that (A) such Credit Party shall be the continuing or
surviving corporation, (B) the Credit Parties shall cause to be executed and
delivered such documents, instruments and certificates as the Administrative
Agent may request in order to maintain the perfection and priority of the
Administrative Agent's liens on the assets of the Credit Parties as required by
Section 6(f) of the Security Agreement after giving effect to such transaction
and (C) after giving effect to such transaction, no Default or Event of Default
exists, (iv) any Consolidated Party which is not a Credit Party may be merged or
consolidated with or into any other Consolidated Party which is not a Credit
Party provided that, after giving effect to such transaction, no Default or
Event of Default exists and (v) any Immaterial Subsidiary of the Borrower may
dissolve itself so long as (A) the assets of such Immaterial Subsidiary are
transferred to another Credit Party prior to such dissolution and (B) the
Borrower provides the Administrative Agent with written notice of such
dissolution with five (5) Business Days of the occurrence of such dissolution.
(b) to sell, assign, lease, or otherwise dispose of all or any
part of its property, except for sales or other dispositions of Equipment that
are obsolete or no longer useable by a Credit Party in its business with an
orderly liquidation value not to exceed $ 100,000 in any Fiscal Year. Within 120
days following each such Equipment sale or disposition, such Credit Party shall
either (i) reinvest the proceeds of that sale or disposition in other Equipment
or (ii) apply such proceeds to the Loans. All Equipment purchased with such
proceeds shall be free and clear of all Liens, except the Administrative Agent's
Liens. Notwithstanding the foregoing, upon prior written notice to
Administrative Agent and if no Default or Event of Default shall then exist, the
Borrower may sell (1) its kforce Consulting Division and the human resources
division of the Borrower, provided that the proceeds of any such sale are
remitted to Administrative Agent in an amount such that there is no net
reduction in Availability after giving effect to the disposition of such assets,
(2) the Aircraft and (3) the Ybor Property.
7.10 Distributions; Capital Change; Restricted Investments. No Credit
Party shall (i) directly or indirectly declare or make, or incur any liability
to make, any Distribution, except (A) in connection with an with an Eligible
Securities Repurchase, and (B) Distributions to the Borrower by its
Subsidiaries, (ii) make any change in its capital structure which could have a
Material Adverse Effect or (iii) make any Investments in or to any Person,
except for Permitted Investments.
7.11 Transactions Affecting Collateral or Obligations. No Credit Party
shall enter into any transaction which would be reasonably expected to have a
Material Adverse Effect.
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7.12 Guaranties. No Credit Party shall make, issue, or become liable on
any Guaranty, except Guaranties of the Obligations in favor of the
Administrative Agent.
7.13 Debt. No Credit Party shall incur or maintain any Debt, other
than: (a) the Obligations; (b) Debt described on Schedule 6.9; (c) Capital
Leases of Equipment and purchase money secured Debt incurred to purchase
Equipment provided that (i) Liens securing the same attach only to the Equipment
acquired by the incurrence of such Debt, and (ii) the aggregate amount of such
Debt (including Capital Leases) outstanding does not exceed $1,000,000 at any
time; (d) Debt evidencing a refunding, renewal or extension of the Debt
described on Schedule 6.9; provided that (i) the principal amount thereof is not
increased, (ii) the Liens, if any, securing such refunded, renewed or extended
Debt do not attach to any assets in addition to those assets, if any, securing
the Debt to be refunded, renewed or extended, (iii) no Person that is not an
obligor or guarantor of such Debt as of the Closing Date shall become an obligor
or guarantor thereof, and (iv) the terms of such refunding, renewal or extension
are no less favorable to the Borrower, the Administrative Agent or the Lenders
than the original Debt; (e) obligations of the Borrower in respect of Hedging
Agreements entered into in order to manage existing or anticipated interest rate
or exchange rate risks and not for speculative purposes; and (f) Indebtedness
owing by one Credit Party to another Credit Party.
7.14 Prepayment. The Credit Parties will not permit any Consolidated
Party to (a) after the issuance thereof, amend or modify (or permit the
amendment or modification of) any of the terms of any Indebtedness if such
amendment or modification would add or change any terms in a manner adverse to
the issuer of such Indebtedness, or shorten the final maturity or average life
to maturity or require any payment to be made sooner than originally scheduled
or increase the interest rate applicable thereto or change any subordination
provision thereof, or (b) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment or redemption or acquisition for
value of (including without limitation, by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or exchange of any other Indebtedness.
7.15 Transactions with Affiliates. Except as set forth below, no Credit
Party shall, sell, transfer, distribute, or pay any money or property,
including, but not limited to, any fees or expenses of any nature (including,
but not limited to, any fees or expenses for management services), to any
Affiliate, or lend or advance money or property to any Affiliate, or invest in
(by capital contribution or otherwise) or purchase or repurchase any stock or
indebtedness, or any property, of any Affiliate, or become liable on any
Guaranty of the indebtedness, dividends, or other obligations of any Affiliate.
Notwithstanding the foregoing, while no Event of Default has occurred and is
continuing, (a) each Credit Party may engage in transactions with Affiliates in
the ordinary course of business consistent with past practices, and no less
favorable to the other Credit Parties than would be obtained in a comparable
arm's-length transaction with a third party who is not an Affiliate and (b) upon
notice to Agent, the Credit parties may temporarily transfer and assign to
another Credit Party their right, title and interest in the Collateral or other
assets.
7.16 Investment Banking and Finder's Fees. No Credit Party shall pay or
agree to pay, or reimburse any other party with respect to, any investment
banking or similar or related fee, underwriter's fee, finder's fee, or broker's
fee to any Person in connection with this
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Agreement. The Credit Parties shall defend and indemnify the Administrative
Agent and the Lenders against and hold them harmless from all claims of any
Person that a Credit Party is obligated to pay for any such fees, and all costs
and expenses (including attorneys' fees) incurred by the Administrative Agent
and/or any Lender in connection therewith.
7.17 Business Conducted. The Credit Parties will not permit any
Consolidated Party to substantively alter the character or conduct of the
business conducted by such Person as of the Closing Date, except for the
expansion of any such Consolidated Party's traditional business lines and/or
transition of any such Consolidated Party into an internet-based or "e-business
service provider".
7.18 Liens. No Credit Party shall create, incur, assume, or permit to
exist any Lien on any property now owned or hereafter acquired by any of them,
except Permitted Liens, and Liens, if any, in effect as of the Closing Date
described in Schedule 6.9 securing Debt described in Schedule 6.9 and Liens
securing Capital Leases and purchase money Debt permitted in Section 7.13.
7.19 Sale and Leaseback Transactions. No Credit Party shall, directly
or indirectly, enter into any arrangement with any Person who is not a Credit
Party providing for a Credit Party to lease or rent property that such Credit
Party has sold or will sell or otherwise transfer to such Person, except for
leases with respect to computer equipment owned by a Credit Party but only to
the extent the aggregate rental expense of the Credit Parties with respect to
such operating leases does not exceed $3,000,000 in the aggregate during the
term of this Agreement.
7.20 New Subsidiaries. No Credit Party shall, directly or indirectly,
organize, create, acquire or permit to exist any Subsidiary other than those
listed on Schedule 6.5 unless such Subsidiary shall have complied with the
provisions of Section 7.26 of this Agreement.
7.21 Fiscal Year. No Credit Party shall change its Fiscal Year.
7.22 Capital Expenditures. No Credit Party shall make or incur any
Capital Expenditure if, after giving effect thereto, the aggregate amount of all
Capital Expenditures by the Borrower and its Subsidiaries on a consolidated
basis would exceed $6,000,000 during any Fiscal Year.
7.23 EBITDA. For so long as Availability is less than $20,000,000, the
Borrower shall achieve EBITDA, on a consolidated basis, as of the last day of
each fiscal quarter for the four consecutive fiscal quarters then ending, of not
less than the amount set forth below for the period indicated:
PERIOD ENDING EBITDA
------------- ------
The fiscal quarter ending December 31, 2000 $ 6,500,000
The two (2) fiscal quarters ending March 31, 2001 $15,000,000
The three (3) fiscal quarters ending June 30, 2001 $25,000,000
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The four (4) fiscal quarters ending September 30, 2001
and as of the last day of each fiscal quarter
thereafter, at each such date for the four (4) quarters
then ending $35,000,000
7.24 Minimum Availability. The Borrower shall maintain Availability of
not less than $10,000,000 at any time during the term of this Agreement.
7.25 Use of Proceeds. No Credit Party shall use any portion of the Loan
proceeds for any purpose other than a Permitted Use. Without limiting the
foregoing, no Credit Party shall use any portion of the Loan proceeds, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of the Borrower or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to acquire any security in any transaction that is subject
to Section 13 or 14 of the Exchange Act.
7.26 Additional Credit Parties. As soon as practicable and in any event
within 30 days after any Person becomes a Subsidiary of any Credit Party, the
Borrower shall provide the Administrative Agent with written notice thereof
setting forth information in reasonable detail describing all of the assets of
such Person and shall (a) if such Person is a Domestic Subsidiary of a Credit
Party, cause such Person to execute a Joinder Agreement in substantially the
same form as Exhibit G, (b) cause 100% (or, if less, the full amount owned by
the applicable Credit Party) if such Person is a Domestic Subsidiary of a Credit
Party or 66% (or, if less, the full amount owned by the applicable Credit Party)
if such Person is a direct Foreign Subsidiary of a Credit Party of the Capital
Stock of such Person to be delivered to the Administrative Agent (together with
undated stock powers signed in blank (unless, with respect to a Foreign
Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent
in its reasonable discretion under the law of the jurisdiction of incorporation
of such Person)) and pledged to the Administrative Agent pursuant to an
appropriate pledge agreement(s) in form acceptable to the Administrative Agent
and cause such Person to deliver such other documentation as the Administrative
Agent may reasonably request in connection with the foregoing, including,
without limitation, appropriate UCC-1 financing statements, landlord's waivers,
certified resolutions and other organizational and authorizing documents of such
Person, and favorable opinions of counsel to such Person all in form, content
and scope reasonably satisfactory to the Administrative Agent.
7.27 Further Assurances. The Credit Parties shall execute and deliver,
or cause to be executed and delivered, to the Administrative Agent and/or the
Lenders such documents and agreements, and shall take or cause to be taken such
actions, as the Administrative Agent or any Lender may, from time to time,
request to carry out the terms and conditions of this Agreement and the other
Loan Documents.
7.28 Computer Systems. On or before August 31, 2001, the Credit Parties
shall have adapted and implemented a single software platform for their billing,
invoicing and collections systems.
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ARTICLE 8
CONDITIONS OF LENDING
8.1 Conditions Precedent to Making of Loans on the Closing Date. The
obligation of the Lenders to make the initial Revolving Loans on the Closing
Date, and the obligation of the Administrative Agent to cause the Letter of
Credit Issuer to issue any Letter of Credit on the Closing Date, are subject to
the following conditions precedent having been satisfied in a manner
satisfactory to the Administrative Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have
been executed by each party thereto and the Borrower shall have performed and
complied with all covenants, agreements and conditions contained herein and the
other Loan Documents which are required to be performed or complied with by the
Borrower before or on such Closing Date.
(b) Upon making the Revolving Loans (including such Revolving
Loans made to finance the Closing Fee or otherwise as reimbursement for fees,
costs and expenses then payable under this Agreement) and with all its
obligations current, the Borrower shall have Availability of at least
$20,000,000.00.
(c) All representations and warranties made hereunder and in
the other Loan Documents shall be true and correct as if made on such date.
(d) No Default or Event of Default shall have occurred and be
continuing after giving effect to the Loans to be made and the Letters of Credit
to be issued on the Closing Date.
(e) The Administrative Agent and the Lenders shall have
received such opinions of counsel for the Borrower and its Subsidiaries as the
Administrative Agent or any Lender shall request, each such opinion to be in a
form, scope, and substance reasonably satisfactory to the Administrative Agent,
the Lenders, and their respective counsel.
(f) The Administrative Agent shall have received:
(i) acknowledgment copies of proper financing
statements, duly filed on or before the Closing Date under the
UCC of all jurisdictions that the Administrative Agent may
deem necessary or desirable in order to perfect the
Administrative Agent's Liens;
(ii) duly executed UCC-3 Termination Statements and
such other instruments, in form and substance satisfactory to
the Administrative Agent, as shall be necessary to terminate
and satisfy all Liens on the Property of the Borrower and its
Subsidiaries except Permitted Liens; and
(iii) the Fee Letter, duly executed by the Borrower.
(g) The Borrower shall have paid all fees and expenses of the
Administrative Agent and the Attorney Costs incurred in connection with any of
the Loan Documents and the transactions contemplated thereby to the extent
invoiced.
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(h) The Administrative Agent shall have received evidence, in
form, scope, and substance, reasonably satisfactory to the Administrative Agent,
of all insurance coverage as required by this Agreement.
(i) The Administrative Agent and the Lenders shall have had an
opportunity, if they so choose, to examine the books of account and other
records and files of the Borrower and to make copies thereof, and to conduct a
pre-closing audit which shall include, without limitation, verification of
Accounts, and the Borrowing Base, and the results of such examination and audit
shall have been satisfactory to the Administrative Agent and the Lenders in all
respects.
(j) All proceedings taken in connection with the execution of
this Agreement, all other Loan Documents and all documents and papers relating
thereto shall be satisfactory in form, scope, and substance to the
Administrative Agent and the Lenders.
(k) Without limiting the generality of the items described
above, the Borrower and each Person guarantying or securing payment of the
Obligations shall have delivered or caused to be delivered to the Administrative
Agent (in form and substance reasonably satisfactory to the Administrative
Agent), the financial statements, instruments, resolutions, documents,
agreements, certificates, opinions and other items set forth on the "Closing
Checklist" delivered by the Administrative Agent to the Borrower prior to the
Closing Date.
The acceptance by the Borrower of any Loans made or Letters of Credit
issued on the Closing Date shall be deemed to be a representation and warranty
made by the Borrower to the effect that all of the conditions precedent to the
making of such Loans or the issuance of such Letters of Credit have been
satisfied, with the same effect as delivery to the Administrative Agent and the
Lenders of a certificate signed by a Responsible Officer of the Borrower, dated
the Closing Date, to such effect.
Execution and delivery to the Administrative Agent by a Lender of a
counterpart of this Agreement shall be deemed confirmation by such Lender that
(i) all conditions precedent in this Section 8.1 have been fulfilled to the
satisfaction of such Lender, (ii) the decision of such Lender to execute and
deliver to the Administrative Agent an executed counterpart of this Agreement
was made by such Lender independently and without reliance on the Administrative
Agent or any other Lender as to the satisfaction of any condition precedent set
forth in this Section 8.1, and (iii) all documents sent to such Lender for
approval consent, or satisfaction were acceptable to such Lender.
8.2 Conditions Precedent to Each Loan. The obligation of the Lenders to
make each Loan, including the initial Revolving Loans on the Closing Date, and
the obligation of the Administrative Agent to cause the Letter of Credit Issuer
to issue any Letter of Credit shall be subject to the further conditions
precedent that on and as of the date of any such extension of credit:
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(a) The following statements shall be true, and the acceptance
by the Borrower of any extension of credit shall be deemed to be a statement to
the effect set forth in clauses (i), (ii) and (iii) with the same effect as the
delivery to the Administrative Agent and the Lenders of a certificate signed by
a Responsible Officer, dated the date of such extension of credit, stating that:
(i) The representations and warranties contained in
this Agreement and the other Loan Documents are correct in all
material respects on and as of the date of such extension of
credit as though made on and as of such date, other than any
such representation or warranty which relates to a specified
prior date and except to the extent the Administrative Agent
and the Lenders have been notified in writing by the Borrower
that any representation or warranty is not correct and the
Required Lenders have explicitly waived in writing compliance
with such representation or warranty; and
(ii) No event has occurred and is continuing, or
would result from such extension of credit, which constitutes
a Default or an Event of Default; and
(iii) No event has occurred and is continuing, or
would result from such extension of credit, which has had or
would have a Material Adverse Effect.
(b) No such Borrowing shall exceed Availability (except to the
extent expressly consented to by the Administrative Agent pursuant to Section
1.2(a)(i)), provided, however, that the foregoing conditions precedent are not
conditions to each Lender participating in or reimbursing the Bank or the
Administrative Agent for such Lenders' Pro Rata Share of any Non-Ratable Loan or
Agent Advance made in accordance with the provisions of Sections 1.2(h) and (i).
ARTICLE 9
DEFAULT; REMEDIES
9.1 Events of Default. It shall constitute an event of default ("Event
of Default") if any one or more of the following shall occur for any reason:
(a) any failure by the Borrower (i) to pay the principal on
any of the Obligations when due, whether upon demand or otherwise, or
(ii) to pay interest or premium on any of the Obligations or any fee or
other amount owing hereunder on or within five (5) Business Days after
the due date thereof, whether upon demand or otherwise;
(b) any representation or warranty made or deemed made by the
Borrower in this Agreement or by the Borrower or any of its
Subsidiaries in any of the other Loan Documents, any Financial
Statement, or any certificate furnished by the Borrower or any of its
Subsidiaries at any time to the Administrative Agent or any Lender
shall prove to be untrue in any material respect as of the date on
which made, deemed made, or furnished;
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(c) (i) any default shall occur in the observance or
performance of any of the covenants and agreements contained in
Sections 5.2(k), 7.2 (in respect of Florida and Texas only), 7.5,
7.9-7.27 of this Agreement or Section 4(c) of the Security Agreement,
(ii) any default shall occur in the observance or performance of any of
the covenants and agreements contained in Sections 5.2 (other than
5.2(k) or 5.3 and such default shall continue for three (3) days or
more; or (iii) any default shall occur in the observance or performance
of any of the other covenants or agreements contained in Section 7.2
(as to any applicable state other than Florida and Texas ) and in any
other Section of this Agreement or any other Loan Document, any other
Loan Documents, or any other agreement entered into at any time to
which the Borrower or any Subsidiary and the Administrative Agent or
any Lender are party (including in respect of any Bank Products) and
such default shall continue for thirty (30) days or more after the
earlier of a Responsible Officer becoming aware of such default or
notice thereof by the Administrative Agent;
(d) any default shall occur with respect to any Debt (other
than the Obligations) of the Borrower or any of its Subsidiaries in an
outstanding principal amount which exceeds $250,000, or under any
agreement or instrument under or pursuant to which any such Debt may
have been issued, created, assumed, or guaranteed by the Borrower or
any of its Subsidiaries, and such default shall continue for more than
the period of grace, if any, therein specified, if the effect thereof
(with or without the giving of notice or further lapse of time or both)
is to accelerate, or to permit the holders of any such Debt to
accelerate, the maturity of any such Debt; or any such Debt shall be
declared due and payable or be required to be prepaid (other than by a
regularly scheduled required prepayment) prior to the stated maturity
thereof;
(e) the Borrower or any of its Subsidiaries shall (i) file a
voluntary petition in bankruptcy or file a voluntary petition or an
answer or otherwise commence any action or proceeding seeking
reorganization, arrangement or readjustment of its debts or for any
other relief under the federal Bankruptcy Code, as amended, or under
any other bankruptcy or insolvency act or law, state or federal, now or
hereafter existing, or consent to, approve of, or acquiesce in, any
such petition, action or proceeding; (ii) apply for or acquiesce in the
appointment of a receiver, assignee, liquidator, sequestrator,
custodian, monitor, trustee or similar officer for it or for all or any
part of its property; (iii) make an assignment for the benefit of
creditors; or (iv) be unable generally to pay its debts as they become
due;
(f) an involuntary petition shall be filed or an action or
proceeding otherwise commenced seeking reorganization, arrangement,
consolidation or readjustment of the debts of the Borrower or any of
its Subsidiaries or for any other relief under the federal Bankruptcy
Code, as amended, or under any other bankruptcy or insolvency act or
law, state or federal, now or hereafter existing and such petition or
proceeding shall not be dismissed within thirty (30) days after
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the filing or commencement thereof or an order of relief shall be
entered with respect thereto;
(g) a receiver, assignee, liquidator, sequestrator, custodian,
monitor, trustee or similar officer for the Borrower or any of its
Subsidiaries or for all or any part of its property shall be appointed
or a warrant of attachment, execution or similar process shall be
issued against any part of the property of the Borrower or any of its
Subsidiaries;
(h) the Borrower or any of its Subsidiaries (other than an
Immaterial Subsidiary) shall file a certificate of dissolution under
applicable state law or shall be liquidated, dissolved or wound-up or
shall commence or have commenced against it any action or proceeding
for dissolution, winding-up or liquidation, or shall take any corporate
action in furtherance thereof;
(i) all or any material part of the property of the Borrower
or any of its Subsidiaries shall be nationalized, expropriated or
condemned, seized or otherwise appropriated, or custody or control of
such property or of the Borrower or such Subsidiary shall be assumed by
any Governmental Authority or any court of competent jurisdiction at
the instance of any Governmental Authority, except where contested in
good faith by proper proceedings diligently pursued where a stay of
enforcement is in effect;
(j) an event of default shall occur under any Loan Document
and any applicable period of grace shall have expired, or any Loan
Document shall be terminated, revoked or declared void or invalid or
unenforceable or challenged by the Borrower or any other obligor;
(k) one or more judgments, orders, decrees or arbitration
awards is entered against the Borrower involving in the aggregate
liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any
single or related or unrelated series of transactions, incidents or
conditions, of $250,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of thirty (30) days
after the entry thereof;
(l) any loss, theft, damage or destruction of any item or
items of Collateral or other property of the Borrower or any Subsidiary
occurs which could reasonably be expected to cause a Material Adverse
Effect and is not adequately covered by insurance;
(m) there is filed against the Borrower or any of its
Subsidiaries any action, suit or proceeding under any federal or state
racketeering statute (including the Racketeer Influenced and Corrupt
Organization Act of 1970), which action, suit or proceeding (i) is not
dismissed within one hundred twenty (120) days, and (ii) could
reasonably be expected to result in the confiscation or forfeiture of
any material portion of the Collateral;
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(n) for any reason other than the failure of the
Administrative Agent to take any action available to it to maintain
perfection of the Administrative Agent's Liens, pursuant to the Loan
Documents, any Loan Document ceases to be in full force and effect or
any Lien with respect to any material portion of the Collateral
intended to be secured thereby ceases to be, or is not, valid,
perfected and prior to all other Liens (other than Permitted Liens) or
is terminated, revoked or declared void;
(o) an ERISA Event shall occur with respect to a Pension Plan
or Multi-employer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multi-employer Plan or the PBGC in an aggregate
amount in excess of $25,000.00; (ii) the aggregate amount of Unfunded
Pension Liability among all Pension Plans at any time exceeds
$25,000.00 ; or (iii) the Borrower or any ERISA Affiliate shall fail to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multi-employer Plan in an aggregate
amount in excess of $25,000.00; or
(p) a Change of Control occurs.
9.2 Remedies. If a Default or an Event of Default exists, the
Administrative Agent may, in its discretion, and shall, at the direction of the
Required Lenders, do one or more of the following at any time or times and in
any order, without notice to or demand on the Borrower: (i) reduce the Maximum
Revolver Amount, or the advance rates against Eligible Accounts used in
computing the Borrowing Base, or reduce one or more of the other elements used
in computing the Borrowing Base; (ii) restrict the amount of or refuse to make
Revolving Loans; and (iii) restrict or refuse to provide Letters of Credit or
Credit Support. If an Event of Default exists, the Administrative Agent shall,
at the direction of the Required Lenders, do one or more of the following, in
addition to the actions described in the preceding sentence, at any time or
times and in any order, without notice to or demand on the Borrower: (A)
terminate the Commitments and this Agreement; (B) declare any or all Obligations
to be immediately due and payable; provided, however, that upon the occurrence
of any Event of Default described in Sections 9.1(e), 9.1(f), 9.1(g), or 9.1(h),
the Commitments shall automatically and immediately expire and all Obligations
shall automatically become immediately due and payable without notice or demand
of any kind; (C) require the Borrower to cash collateralize all outstanding
Letter of Credit Obligations; and (D) pursue its other rights and remedies under
the Loan Documents and applicable law.
(a) If an Event of Default has occurred and is continuing: (i)
the Administrative Agent shall have for the benefit of the Lenders, in addition
to all other rights of the Administrative Agent and the Lenders, the rights and
remedies of a secured party under the Loan Documents and the UCC; (ii) the
Administrative Agent may, at any time, take possession of the Collateral and
keep it on the Borrower's premises, at no cost to the Administrative Agent or
any Lender, or remove any part of it to such other place or places as the
Administrative Agent may desire, or the Borrower shall, upon the Administrative
Agent's demand, at the Borrower's cost, assemble the Collateral and make it
available to the Administrative Agent at a place
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reasonably convenient to the Administrative Agent; and (iii) the Administrative
Agent may sell and deliver any Collateral at public or private sales, for cash,
upon credit or otherwise, at such prices and upon such terms as the
Administrative Agent deems advisable, in its sole discretion, and may, if the
Administrative Agent deems it reasonable, postpone or adjourn any sale of the
Collateral by an announcement at the time and place of sale or of such postponed
or adjourned sale without giving a new notice of sale. Without in any way
requiring notice to be given in the following manner, the Borrower agrees that
any notice by the Administrative Agent of sale, disposition or other intended
action hereunder or in connection herewith, whether required by the UCC or
otherwise, shall constitute reasonable notice to the Borrower if such notice is
mailed by registered or certified mail, return receipt requested, postage
prepaid, or is delivered personally against receipt, at least five (5) Business
Days prior to such action to the Borrower's address specified in or pursuant to
Section 13.8. If any Collateral is sold on terms other than payment in full at
the time of sale, no credit shall be given against the Obligations until the
Administrative Agent or the Lenders receive payment, and if the buyer defaults
in payment, the Administrative Agent may resell the Collateral without further
notice to the Borrower. In the event the Administrative Agent seeks to take
possession of all or any portion of the Collateral by judicial process, the
Borrower irrevocably waives: (A) the posting of any bond, surety or security
with respect thereto which might otherwise be required; (B) any demand for
possession prior to the commencement of any suit or action to recover the
Collateral; and (C) any requirement that the Administrative Agent retain
possession and not dispose of any Collateral until after trial or final
judgment. The Borrower agrees that the Administrative Agent has no obligation to
preserve rights to the Collateral or marshal any Collateral for the benefit of
any Person. The Administrative Agent is hereby granted a license or other right
to use, without charge, the Borrower's labels, patents, copyrights, name, trade
secrets, trade names, trademarks, and advertising matter, or any similar
property, in completing production of, advertising or selling any Collateral,
and the Borrower's rights under all licenses and all franchise agreements shall
inure to the Administrative Agent's benefit for such purpose. The proceeds of
sale shall be applied first to all expenses of sale, including attorneys' fees,
and then to the Obligations. The Administrative Agent will return any excess to
the Borrower and the Borrower shall remain liable for any deficiency.
(b) If an Event of Default occurs, the Borrower hereby waives
all rights to notice and hearing prior to the exercise by the Administrative
Agent of the Administrative Agent's rights to repossess the Collateral without
judicial process or to reply, attach or levy upon the Collateral without notice
or hearing.
ARTICLE 10
TERM AND TERMINATION
10.1 Term and Termination. The term of this Agreement shall end on the
Stated Termination Date, and this Agreement shall automatically renew itself for
one-year periods thereafter ("Renewal Term") unless sooner terminated in
accordance with the terms hereof. The Administrative Agent upon direction from
the Required Lenders may terminate this Agreement upon at least ninety (90) days
prior written notice to the Borrower as of the Stated Termination Date or as of
the last day of any Renewal Term and without notice upon the occurrence of an
Event of Default. Upon the effective date of termination of this Agreement for
any reason whatsoever, all Obligations (including all unpaid principal, accrued
and unpaid interest and any
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early termination or prepayment fees or penalties) shall become immediately due
and payable and the Borrower shall immediately arrange for the cancellation and
return of Letters of Credit then outstanding. Notwithstanding the termination of
this Agreement, until all Obligations are indefeasibly paid and performed in
full in cash, the Borrower shall remain bound by the terms of this Agreement and
shall not be relieved of any of its Obligations hereunder or under any other
Loan Document, and the Administrative Agent and the Lenders shall retain all
their rights and remedies hereunder (including the Administrative Agent's Liens
in and all rights and remedies with respect to all then existing and
after-arising Collateral).
ARTICLE 11
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
11.1 Amendments and Waivers.
(a) No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent with respect to any departure by the
Borrower therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or by the Administrative Agent at the written
request of the Required Lenders) and the Borrower and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the Lenders and the Borrower
and acknowledged by the Administrative Agent, do any of the following:
(i) increase or extend the Commitment of any Lender;
(ii) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document;
(iii) reduce the principal of, or the rate of interest
specified herein on any Loan, or any fees or other amounts payable
hereunder or under any other Loan Document;
(iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Lenders or any of them to take any action hereunder;
(v) increase any of the percentages set forth in the
definition of the Borrowing Base;
(vi) amend this Section or any provision of this Agreement
providing for consent or other action by all Lenders;
(vii) release any Guaranties of the Obligations or] release
Collateral other than as permitted by Section 12.11;
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(viii) change the definitions of "Majority Lenders" or
"Required Lenders"; or
(ix) increase the Maximum Revolver Amount, and Letter of
Credit Subfacility;
provided, however, the Administrative Agent may, in its sole discretion and
notwithstanding the limitations contained in clauses (v) and (ix) above and any
other terms of this Agreement, make Agent Advances in accordance herewith and,
provided further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document and
provided further, that Schedule 1.2 hereto (Commitments) may be amended from
time to time by Administrative Agent alone to reflect assignments of Commitments
in accordance herewith.
(b) If any fees are paid to the Lenders as consideration for
amendments, waivers or consents with respect to this Agreement, at
Administrative Agent's election, such fees may be paid only to those Lenders
that agree to such amendments, waivers or consents within the time specified for
submission thereof.
(c) If, in connection with any proposed amendment, waiver or
consent (a "Proposed Change"):
(i) requiring the consent of all Lenders, the consent of
Required Lenders is obtained, but the consent of other Lenders is not
obtained (any such Lender whose consent is not obtained as described in
this clause (i) and in clause (ii) below being referred to as a
"Non-Consenting Lender"), or
(ii) requiring the consent of Required Lenders, the consent of
Majority Lenders is obtained,
then, so long as the Administrative Agent is not a Non-Consenting Lender, at the
Borrower's request, the Administrative Agent or an Eligible Assignee shall have
the right (but not the obligation) with the Administrative Agent's approval, to
purchase from the Non-Consenting Lenders, and the Non-Consenting Lenders agree
that they shall sell, all the Non-Consenting Lenders' Commitments for an amount
equal to the principal balances thereof and all accrued interest and fees with
respect thereto through the date of sale pursuant to Assignment and Acceptance
Agreement(s), without premium or discount.
11.2 Assignments; Participations.
(a) Any Lender may, with the written consent of the
Administrative Agent (which consent shall not be unreasonably withheld), assign
and delegate to one or more Eligible Assignees (provided that no consent of the
Administrative Agent shall be required in connection with any assignment and
delegation by a Lender to an Affiliate of such Lender) (each an "Assignee") all,
or any ratable part of all, of the Loans, the Commitments and the other rights
and obligations of such Lender hereunder, in a minimum amount of $5,000,000
(provided that, unless an assignor Lender has assigned and delegated all of its
Loans and Commitments, no such assignment and/or delegation shall be permitted
unless, after giving effect thereto, such assignor
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Lender retains a Commitment in a minimum amount of $10,000,000; provided,
however, that the Borrower and the Administrative Agent may continue to deal
solely and directly with such Lender in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Administrative Agent by
such Lender and the Assignee; (ii) such Lender and its Assignee shall have
delivered to the Borrower and the Administrative Agent an Assignment and
Acceptance in the form of Exhibit F ("Assignment and Acceptance") together with
any note or notes subject to such assignment and (iii) the assignor Lender or
Assignee has paid to the Administrative Agent a processing fee in the amount of
$3,500. The Borrower agrees to promptly execute and deliver new promissory notes
and replacement promissory notes as reasonably requested by the Administrative
Agent to evidence assignments of the Loans and Commitments in accordance
herewith.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received an executed Assignment and
Acceptance and payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations, including, but not limited to, the obligation to participate in
Letters of Credit and Credit Support have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under the Loan Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto or the attachment, perfection, or priority of any Lien granted
by the Borrower to the Administrative Agent or any Lender in the Collateral;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other Loan Document furnished pursuant hereto; (iii) such
Assignee confirms that it has received a copy of this Agreement, together with
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such Assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender 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 decisions in taking or not taking action under
this Agreement; (v) such Assignee appoints and authorizes the Administrative
Agent to take such action as Administrative Agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers, including the discretionary rights
and incidental power, as are reasonably incidental thereto; and (vi) such
Assignee agrees that it will perform in
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accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) Immediately upon satisfaction of the requirements of
Section 11.2(a), this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Lender
pro tanto.
(e) Any Lender may at any time sell to one or more commercial
banks, financial institutions, or other Persons not Affiliates of the Borrower
(a "Participant") participating interests in any Loans, the Commitment of that
Lender and the other interests of that Lender (the "originating Lender")
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Borrower and the Administrative Agent shall
continue to deal solely and directly with the originating Lender in connection
with the originating Lender's rights and obligations under this Agreement and
the other Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document except the matters set forth in Section 11.1(a) (i), (ii)
and (iii), and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation; except that, if amounts
outstanding under this Agreement are due and unpaid, or shall have become due
and payable upon the occurrence of an Event of Default, each Participant shall
be deemed to have the right of set-off in respect of its participating interest
in amounts owing under this Agreement to the same extent and subject to the same
limitation as if the amount of its participating interest were owing directly to
it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement in favor of any
Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
ARTICLE 12
THE ADMINISTRATIVE AGENT
12.1 Appointment and Authorization. Each Lender hereby designates and
appoints Bank as its Administrative Agent under this Agreement and the other
Loan Documents and each Lender hereby irrevocably authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such on the express conditions
contained in this Article 12. The provisions of this Article 12 are solely for
the benefit of the Administrative
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Agent and the Lenders and the Borrower shall have no rights as a third party
beneficiary of any of the provisions contained herein. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "Administrative
Agent" in this Agreement with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties. Except
as expressly otherwise provided in this Agreement, the Administrative Agent
shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining from
taking any actions which the Administrative Agent is expressly entitled to take
or assert under this Agreement and the other Loan Documents, including (a) the
determination of the applicability of ineligibility criteria with respect to the
calculation of the Borrowing Base, (b) the making of Agent Advances pursuant to
Section 1.2(i), and (c) the exercise of remedies pursuant to Section 9.2, and
any action so taken or not taken shall be deemed consented to by the Lenders.
12.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through
Administrative Agents, employees 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 Administrative Agent or attorney-in-fact that it selects as long as such
selection was made without gross negligence or willful misconduct.
12.3 Liability of Administrative Agent. None of the Administrative
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Lenders for any recital, statement, representation or warranty made by
the Borrower or any Subsidiary or Affiliate of the Borrower, or any officer
thereof, contained in this Agreement or in any other Loan 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 Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Administrative
Agent-Related Person shall 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 any other Loan Document, or to
inspect the properties, books or records of the Borrower or any of the
Borrower's Subsidiaries or Affiliates.
12.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice,
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consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Borrower), 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 Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, 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 or any
other Loan Document in accordance with a request or consent of the Required
Lenders (or all Lenders if so required by Section 11.1) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
12.5 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,
unless the Administrative Agent shall have received written 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." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Required Lenders in accordance with
Section 9; provided, however, that unless and until the Administrative Agent has
received any such request, the 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.
12.6 Credit Decision. Each Lender acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower and its Affiliates, shall be deemed to
constitute any representation or warranty by any Administrative Agent-Related
Person to any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon any Administrative Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Affiliates, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower. Each Lender also represents
that it will, independently and without reliance upon any Administrative
Agent-Related Person 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
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower which may come into the
possession of any of the Administrative Agent-Related Persons.
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12.7 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Administrative Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the Borrower to do
so), in accordance with their Pro Rata Shares, from and against any and all
Indemnified Liabilities as such term is defined in Section 13.11; provided,
however, that no Lender shall be liable for the payment to the Administrative
Agent-Related Persons of any portion of such Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
12.8 Administrative Agent in Individual Capacity. The Bank and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Borrower and its Subsidiaries and Affiliates as though the Bank were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Bank or its Affiliates may receive information regarding the Borrower, its
Affiliates and Account Debtors (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Subsidiary) and
acknowledge that the Administrative Agent and the Bank shall be under no
obligation to provide such information to them. With respect to its Loans, the
Bank shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" include the Bank in its individual
capacity.
12.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon at least 30 days' prior notice to the
Lenders and the Borrower, such resignation to be effective upon the acceptance
of a successor Administrative Agent to its appointment as Administrative Agent.
In the event the Bank sells all of its Commitment and Revolving Loans as part of
a sale, transfer or other disposition by the Bank of substantially all of its
loan portfolio, the Bank shall resign as Administrative Agent and such purchaser
or transferee shall become the successor Administrative Agent hereunder. Subject
to the foregoing, if the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor Administrative
Agent for the Lenders. If no successor Administrative Agent is appointed prior
to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as
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Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article 12 shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
12.10 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Lender claims exemption from, or
a reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code,
such Lender agrees with and in favor of the Administrative Agent, to deliver to
the Administrative Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States of America
tax treaty, properly completed IRS Forms W-8BEN and W-8ECI
before the payment of any interest in the first calendar year
and before the payment of any interest in each third
succeeding calendar year during which interest may be paid
under this Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States of America
withholding tax because it is effectively connected with a
United States of America trade or business of such Lender, two
properly completed and executed copies of IRS Form W-8ECI
before the payment of any interest is due in the first taxable
year of such Lender and in each succeeding taxable year of
such Lender during which interest may be paid under this
Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States of America
as a condition to exemption from, or reduction of, United
States of America withholding tax.
Such Lender agrees to promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States of America tax treaty by providing IRS
Form FW-8BEN and such Lender sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations owing to such Lender, such
Lender agrees to notify the Administrative Agent of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Borrower to
such Lender. To the extent of such percentage amount, the Administrative Agent
will treat such Lender's IRS Form W-8BEN as no longer valid.
(c) If any Lender claiming exemption from United States of
America withholding tax by filing IRS Form W-8ECI with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations owing to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
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(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by subsection (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States of America or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not delivered, was
not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, together with all costs and expenses (including Attorney Costs). The
obligation of the Lenders under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Administrative Agent.
12.11 Collateral Matters.
(a) The Lenders hereby irrevocably authorize the
Administrative Agent, at its option and in its sole discretion, to release any
Administrative Agent's Liens upon any Collateral (i) upon the termination of the
Commitments and payment and satisfaction in full by Borrower of all Loans and
reimbursement obligations in respect of Letters of Credit and Credit Support,
and the termination of all outstanding Letters of Credit (whether or not any of
such obligations are due) and all other Obligations; (ii) constituting property
being sold or disposed of if the Borrower certifies to the Administrative Agent
that the sale or disposition is made in compliance with Section 7.9 (and the
Administrative Agent may rely conclusively on any such certificate, without
further inquiry); (iii) constituting property in which the Borrower owned no
interest at the time the Lien was granted or at any time thereafter; or (iv)
constituting property leased to the Borrower under a lease which has expired or
been terminated in a transaction permitted under this Agreement. Except as
provided above, the Administrative Agent will not release any of the
Administrative Agent's Liens without the prior written authorization of the
Lenders. Upon request by the Administrative Agent or the Borrower at any time,
the Lenders will confirm in writing the Administrative Agent's authority to
release any Administrative Agent's Liens upon particular types or items of
Collateral pursuant to this Section 12.11.
(b) Upon receipt by the Administrative Agent of any
authorization required pursuant to Section 12.11(a) from the Lenders of the
Administrative Agent's authority to release Administrative Agent's Liens upon
particular types or items of Collateral, and upon at least five (5) Business
Days prior written request by the Borrower, the Administrative Agent shall (and
is hereby irrevocably authorized by the Lenders to) execute such documents as
may be necessary to evidence the release of the Administrative Agent's Liens
upon such Collateral;
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provided, however, that (i) the Administrative Agent shall not be required to
execute any such document on terms which, in the Administrative Agent's opinion,
would expose the Administrative Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations or any Liens (other than those expressly being released)
upon (or obligations of the Borrower in respect of) all interests retained by
the Borrower, including the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
(c) The Administrative Agent shall have no obligation whatsoever to any
of the Lenders to assure that the Collateral exists or is owned by the Borrower
or is cared for, protected or insured or has been encumbered, or that the
Administrative Agent's Liens have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to any particular
priority, or to exercise at all or in any particular manner or under any duty of
care, disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Administrative Agent pursuant
to any of the Loan Documents, it being understood and agreed that in respect of
the Collateral, or any act, omission or event related thereto, the
Administrative Agent may act in any manner it may deem appropriate, in its sole
discretion given the Administrative Agent's own interest in the Collateral in
its capacity as one of the Lenders and that the Administrative Agent shall have
no other duty or liability whatsoever to any Lender as to any of the foregoing.
12.12 Restrictions on Actions by Lenders; Sharing of Payments.
(a) Each of the Lenders agrees that it shall not, without the
express consent of all Lenders, and that it shall, to the extent it is lawfully
entitled to do so, upon the request of all Lenders, set off against the
Obligations, any amounts owing by such Lender to the Borrower or any accounts of
the Borrower now or hereafter maintained with such Lender. Each of the Lenders
further agrees that it shall not, unless specifically requested to do so by the
Administrative Agent, take or cause to be taken any action to enforce its rights
under this Agreement or against the Borrower, including the commencement of any
legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce
any security interest in, any of the Collateral.
(b) If at any time or times any Lender shall receive (i) by
payment, foreclosure, setoff or otherwise, any proceeds of Collateral or any
payments with respect to the Obligations of the Borrower to such Lender arising
under, or relating to, this Agreement or the other Loan Documents, except for
any such proceeds or payments received by such Lender from the Administrative
Agent pursuant to the terms of this Agreement, or (ii) payments from the
Administrative Agent in excess of such Lender's ratable portion of all such
distributions by the Administrative Agent, such Lender shall promptly (1) turn
the same over to the Administrative Agent, in kind, and with such endorsements
as may be required to negotiate the same to the Administrative Agent, or in same
day funds, as applicable, for the account of all of the Lenders and for
application to the Obligations in accordance with the applicable provisions of
this Agreement, or (2) purchase, without recourse or warranty, an undivided
interest and participation in the Obligations owed to the other Lenders so that
such excess payment received shall be applied ratably as among the Lenders in
accordance with their Pro Rata Shares; provided,
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however, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases of participations shall
be rescinded in whole or in part, as applicable, and the applicable portion of
the purchase price paid therefor shall be returned to such purchasing party, but
without interest except to the extent that such purchasing party is required to
pay interest in connection with the recovery of the excess payment.
12.13 Agency for Perfection. Each Lender hereby appoints each other
Lender as Administrative Agent for the purpose of perfecting the Lenders'
security interest in assets which, in accordance with Article 9 of the UCC can
be perfected only by possession. Should any Lender (other than the
Administrative Agent) obtain possession of any such Collateral, such Lender
shall notify the Administrative Agent thereof, and, promptly upon the
Administrative Agent's request therefor shall deliver such Collateral to the
Administrative Agent or in accordance with the Administrative Agent's
instructions.
12.14 Payments by Administrative Agent to Lenders. All payments to be
made by the Administrative Agent to the Lenders shall be made by bank wire
transfer or internal transfer of immediately available funds to each Lender
pursuant to wire transfer instructions delivered in writing to the
Administrative Agent on or prior to the Closing Date (or if such Lender is an
Assignee, on the applicable Assignment and Acceptance), or pursuant to such
other wire transfer instructions as each party may designate for itself by
written notice to the Administrative Agent. Concurrently with each such payment,
the Administrative Agent shall identify whether such payment (or any portion
thereof) represents principal, premium or interest on the Revolving Loans or
otherwise. Unless the Administrative Agent receives notice from the Borrower
prior to the date on which any payment is due to the Lenders that the Borrower
will not make such payment in full as and when required, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
12.15 Settlement.
(a) (i) Each Lender's funded portion of the Revolving Loans is
intended by the Lenders to be equal at all times to such Lender's Pro Rata Share
of the outstanding Revolving Loans. Notwithstanding such agreement, the
Administrative Agent, the Bank, and the other Lenders agree (which agreement
shall not be for the benefit of or enforceable by the Borrower) that in order to
facilitate the administration of this Agreement and the other Loan Documents,
settlement among them as to the Revolving Loans, the Non-Ratable Loans and the
Agent Advances shall take place on a periodic basis in accordance with the
following provisions:
(ii) The Administrative Agent shall request
settlement ("Settlement") with the Lenders on at least a weekly basis, or on a
more frequent basis at
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Administrative Agent's election, (A) on behalf of the Bank, with respect to each
outstanding Non-Ratable Loan, (B) for itself, with respect to each Agent
Advance, and (C) with respect to collections received, in each case, by
notifying the Lenders of such requested Settlement by telecopy, telephone or
other similar form of transmission, of such requested Settlement, no later than
12:00 noon (Atlanta, Georgia time) on the date of such requested Settlement (the
"Settlement Date"). Each Lender (other than the Bank, in the case of Non-Ratable
Loans and the Administrative Agent in the case of Agent Advances) shall transfer
the amount of such Lender's Pro Rata Share of the outstanding principal amount
of the Non-Ratable Loans and Agent Advances with respect to each Settlement to
the Administrative Agent, to Administrative Agent's account, not later than 2:00
p.m. (Atlanta, Georgia time), on the Settlement Date applicable thereto.
Settlements may occur during the continuation of a Default or an Event of
Default and whether or not the applicable conditions precedent set forth in
Article 8 have then been satisfied. Such amounts made available to the
Administrative Agent shall be applied against the amounts of the applicable
Non-Ratable Loan or Agent Advance and, together with the portion of such
Non-Ratable Loan or Agent Advance representing the Bank's Pro Rata Share
thereof, shall constitute Revolving Loans of such Lenders. If any such amount is
not transferred to the Administrative Agent by any Lender on the Settlement Date
applicable thereto, the Administrative Agent shall be entitled to recover such
amount on demand from such Lender together with interest thereon at the Federal
Funds Rate for the first three (3) days from and after the Settlement Date and
thereafter at the Interest Rate then applicable to the Revolving Loans (A) on
behalf of the Bank, with respect to each outstanding Non-Ratable Loan, and (B)
for itself, with respect to each Agent Advance.
(iii) Notwithstanding the foregoing, not more than
one (1) Business Day after demand is made by the Administrative Agent (whether
before or after the occurrence of a Default or an Event of Default and
regardless of whether the Administrative Agent has requested a Settlement with
respect to a Non-Ratable Loan or Agent Advance), each other Lender (A) shall
irrevocably and unconditionally purchase and receive from the Bank or the
Administrative Agent, as applicable, without recourse or warranty, an undivided
interest and participation in such Non-Ratable Loan or Agent Advance equal to
such Lender's Pro Rata Share of such Non-Ratable Loan or Agent Advance and (B)
if Settlement has not previously occurred with respect to such Non-Ratable Loans
or Agent Advances, upon demand by Bank or Administrative Agent, as applicable,
shall pay to Bank or Administrative Agent, as applicable, as the purchase price
of such participation an amount equal to one-hundred percent (100%) of such
Lender's Pro Rata Share of such Non-Ratable Loans or Agent Advances. If such
amount is not in fact made available to the Administrative Agent by any Lender,
the Administrative Agent shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the Federal Funds Rate for the
first three (3) days from and after such demand and thereafter at the Interest
Rate then applicable to Base Rate Revolving Loans.
(iv) From and after the date, if any, on which any
Lender purchases an undivided interest and participation in any Non-Ratable Loan
or Agent Advance pursuant to clause (iii) above, the Administrative Agent shall
promptly distribute to such Lender, such Lender's Pro Rata Share of all payments
of principal and interest and all proceeds of Collateral received by the
Administrative Agent in respect of such Non-Ratable Loan or Agent Advance.
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(v) Between Settlement Dates, the Administrative
Agent, to the extent no Agent Advances are outstanding, may pay over to the Bank
any payments received by the Administrative Agent, which in accordance with the
terms of this Agreement would be applied to the reduction of the Revolving
Loans, for application to the Bank's Revolving Loans including Non-Ratable
Loans. If, as of any Settlement Date, collections received since the then
immediately preceding Settlement Date have been applied to the Bank's Revolving
Loans (other than to Non-Ratable Loans or Agent Advances in which such Lender
has not yet funded its purchase of a participation pursuant to clause (iii)
above), as provided for in the previous sentence, the Bank shall pay to the
Administrative Agent for the accounts of the Lenders, to be applied to the
outstanding Revolving Loans of such Lenders, an amount such that each Lender
shall, upon receipt of such amount, have, as of such Settlement Date, its Pro
Rata Share of the Revolving Loans. During the period between Settlement Dates,
the Bank with respect to Non-Ratable Loans, the Administrative Agent with
respect to Agent Advances, and each Lender with respect to the Revolving Loans
other than Non-Ratable Loans and Agent Advances, shall be entitled to interest
at the applicable rate or rates payable under this Agreement on the actual
average daily amount of funds employed by the Bank, the Administrative Agent and
the other Lenders.
(vi) Unless the Administrative Agent has received
written notice from a Lender to the contrary, the Administrative Agent may
assume that the applicable conditions precedent set forth in Article 8 have been
satisfied and the requested Borrowing will not exceed Availability on any
Funding Date for a Revolving Loan or Non-Ratable Loan.
(b) Lenders' Failure to Perform. All Revolving Loans (other
than Non-Ratable Loans and Agent Advances) shall be made by the Lenders
simultaneously and in accordance with their Pro Rata Shares. It is understood
that (i) no Lender shall be responsible for any failure by any other Lender to
perform its obligation to make any Revolving Loans hereunder, nor shall any
Commitment of any Lender be increased or decreased as a result of any failure by
any other Lender to perform its obligation to make any Revolving Loans
hereunder, (ii) no failure by any Lender to perform its obligation to make any
Revolving Loans hereunder shall excuse any other Lender from its obligation to
make any Revolving Loans hereunder, and (iii) the obligations of each Lender
hereunder shall be several, not joint and several.
(c) Defaulting Lenders. Unless the Administrative Agent
receives notice from a Lender on or prior to the Closing Date or, with respect
to any Borrowing after the Closing Date, at least one Business Day prior to the
date of such Borrowing, that such Lender will not make available as and when
required hereunder to the Administrative Agent that Lender's Pro Rata Share of a
Borrowing, the Administrative Agent may assume that each Lender has made such
amount available to the Administrative Agent in immediately available funds on
the Funding Date. Furthermore, the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If any Lender has not transferred its full Pro Rata Share to the
Administrative Agent in immediately available funds and the Administrative Agent
has transferred corresponding amount to the Borrower on the Business Day
following such Funding Date that Lender shall make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate for that
day. A notice by the Administrative Agent submitted to any Lender with respect
to amounts owing shall be conclusive, absent manifest error. If each Lender's
full Pro Rata Share is
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transferred to the Administrative Agent as required, the amount transferred to
the Administrative Agent shall constitute that Lender's Revolving Loan for all
purposes of this Agreement. If that amount is not transferred to the
Administrative Agent on the Business Day following the Funding Date, the
Administrative Agent will notify the Borrower of such failure to fund and, upon
demand by the Administrative Agent, the Borrower shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the Interest Rate applicable at the time to the
Revolving Loans comprising that particular Borrowing. The failure of any Lender
to make any Revolving Loan on any Funding Date (any such Lender, prior to the
cure of such failure, being hereinafter referred to as a "Defaulting Lender")
shall not relieve any other Lender of its obligation hereunder to make a
Revolving Loan on that Funding Date. No Lender shall be responsible for any
other Lender's failure to advance such other Lenders' Pro Rata Share of any
Borrowing.
(d) Retention of Defaulting Lender's Payments. The
Administrative Agent shall not be obligated to transfer to a Defaulting Lender
any payments made by Borrower to the Administrative Agent for the Defaulting
Lender's benefit; nor shall a Defaulting Lender be entitled to the sharing of
any payments hereunder. Amounts payable to a Defaulting Lender shall instead be
paid to or retained by the Administrative Agent. In its discretion, the
Administrative Agent may loan Borrower the amount of all such payments received
or retained by it for the account of such Defaulting Lender. Any amounts so
loaned to the Borrower shall bear interest at the rate applicable to Base Rate
Revolving Loans and for all other purposes of this Agreement shall be treated as
if they were Revolving Loans, provided, however, that for purposes of voting or
consenting to matters with respect to the Loan Documents and determining Pro
Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender". Until
a Defaulting Lender cures its failure to fund its Pro Rata Share of any
Borrowing (A) such Defaulting Lender shall not be entitled to any portion of the
Unused Line Fee and (B) the Unused Line Fee shall accrue in favor of the Lenders
which have funded their respective Pro Rata Shares of such requested Borrowing
and shall be allocated among such performing Lenders ratably based upon their
relative Commitments. This Section shall remain effective with respect to such
Lender until such time as the Defaulting Lender shall no longer be in default of
any of its obligations under this Agreement. The terms of this Section shall not
be construed to increase or otherwise affect the Commitment of any Lender, or
relieve or excuse the performance by the Borrower of its duties and obligations
hereunder.
(e) Removal of Defaulting Lender. At the Borrower's request,
the Administrative Agent or an Eligible Assignee reasonably acceptable to the
Administrative Agent and the Borrower shall have the right (but not the
obligation) to purchase from any Defaulting Lender, and each Defaulting Lender
shall, upon such request, sell and assign to the Administrative Agent or such
Eligible Assignee, all of the Defaulting Lender's outstanding Commitments
hereunder. Such sale shall be consummated promptly after Administrative Agent
has arranged for a purchase by Administrative Agent or an Eligible Assignee
pursuant to an Assignment and Acceptance, and at a price equal to the
outstanding principal balance of the Defaulting Lender's Loans, plus accrued
interest and fees, without premium or discount.
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12.16 Letters of Credit; Intra-Lender Issues.
(a) Notice of Letter of Credit Balance. On each Settlement
Date the Administrative Agent shall notify each Lender of the issuance of all
Letters of Credit since the prior Settlement Date.
(b) Participations in Letters of Credit.
(i) Purchase of Participations. Immediately upon
issuance of any Letter of Credit in accordance with Section 1.4(d), each Lender
shall be deemed to have irrevocably and unconditionally purchased and received
without recourse or warranty, an undivided interest and participation equal to
such Lender's Pro Rata Share of the face amount of such Letter of Credit or the
Credit Support provided through the Administrative Agent to the Letter of Credit
Issuer, if not the Bank, in connection with the issuance of such Letter of
Credit (including all obligations of the Borrower with respect thereto, and any
security therefor or guaranty pertaining thereto).
(ii) Sharing of Reimbursement Obligation Payments.
Whenever the Administrative Agent receives a payment from the Borrower on
account of reimbursement obligations in respect of a Letter of Credit or Credit
Support as to which the Administrative Agent has previously received for the
account of the Letter of Credit Issuer thereof payment from a Lender, the
Administrative Agent shall promptly pay to such Lender such Lender's Pro Rata
Share of such payment from the Borrower. Each such payment shall be made by the
Administrative Agent on the next Settlement Date.
(iii) Documentation. Upon the request of any Lender,
the Administrative Agent shall furnish to such Lender copies of any Letter of
Credit, Credit Support for any Letter of Credit, reimbursement agreements
executed in connection therewith, applications for any Letter of Credit, and
such other documentation as may reasonably be requested by such Lender.
(iv) Obligations Irrevocable. The obligations of each
Lender to make payments to the Administrative Agent with respect to any Letter
of Credit or with respect to their participation therein or with respect to any
Credit Support for any Letter of Credit or with respect to the Revolving Loans
made as a result of a drawing under a Letter of Credit and the obligations of
the Borrower for whose account the Letter of Credit or Credit Support was issued
to make payments to the Administrative Agent, for the account of the Lenders,
shall be irrevocable and shall not be subject to any qualification or exception
whatsoever, including any of the following circumstances:
(1) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(2) the existence of any claim, setoff, defense or
other right which the Borrower may have at any time against a beneficiary named
in a Letter of Credit or any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), any Lender, the Administrative
Agent, the issuer of such Letter of Credit, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
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contemplated herein or any unrelated transactions (including any underlying
transactions between the Borrower or any other Person and the beneficiary named
in any Letter of Credit);
(3) any draft, certificate or any 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;
(4) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents;
(5) the occurrence of any Default or Event of Default;
or
(6) the failure of the Borrower to satisfy the
applicable conditions precedent set forth in Article 8.
(c) Recovery or Avoidance of Payments; Refund of Payments In
Error. In the event any payment by or on behalf of the Borrower received by the
Administrative Agent with respect to any Letter of Credit or Credit Support
provided for any Letter of Credit and distributed by the Administrative Agent to
the Lenders on account of their respective participations therein is thereafter
set aside, avoided or recovered from the Administrative Agent in connection with
any receivership, liquidation or bankruptcy proceeding, the Lenders shall, upon
demand by the Administrative Agent, pay to the Administrative Agent their
respective Pro Rata Shares of such amount set aside, avoided or recovered,
together with interest at the rate required to be paid by the Administrative
Agent upon the amount required to be repaid by it. Unless the Administrative
Agent receives notice from the Borrower prior to the date on which any payment
is due to the Lenders that the Borrower will not make such payment in full as
and when required, the Administrative Agent may assume that the Borrower has
made such payment in full to the Administrative Agent on such date in
immediately available funds and the Administrative Agent may (but shall not be
so required), in reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower has not made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender, together with interest thereon at the Federal Funds
Rate for each day from the date such amount is distributed to such Lender until
the date repaid.
(d) Indemnification by Lenders. To the extent not reimbursed
by the Borrower and without limiting the obligations of the Borrower hereunder,
the Lenders agree to indemnify the Letter of Credit Issuer ratably in accordance
with their respective Pro Rata Shares, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys' fees) or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against the Letter of Credit
Issuer in any way relating to or arising out of any Letter of Credit or the
transactions contemplated thereby or any action taken or omitted by the Letter
of Credit Issuer under any Letter of Credit or any Loan Document in connection
therewith; provided that no Lender shall be liable for any of the foregoing to
the extent it arises from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Letter of Credit Issuer promptly upon demand for its Pro
Rata Share of any costs or expenses payable
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by the Borrower to the Letter of Credit Issuer, to the extent that the Letter of
Credit Issuer is not promptly reimbursed for such costs and expenses by the
Borrower. The agreement contained in this Section shall survive payment in full
of all other Obligations.
12.17 Concerning the Collateral and the Related Loan Documents. Each
Lender authorizes and directs the Administrative Agent to enter into the other
Loan Documents, for the ratable benefit and obligation of the Administrative
Agent and the Lenders. Each Lender agrees that any action taken by the
Administrative Agent, Majority Lenders or Required Lenders, as applicable, in
accordance with the terms of this Agreement or the other Loan Documents, and the
exercise by the Administrative Agent, the Majority Lenders, or the Required
Lenders, as applicable, of their respective powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall be
binding upon all of the Lenders. The Lenders acknowledge that the Revolving
Loans, Agent Advances, Non-Ratable Loans, Bank Products and all interest, fees
and expenses hereunder constitute one Debt, secured pari passu by all of the
Collateral.
12.18 Field Audit and Examination Reports; Disclaimer by Lenders. By
signing this Agreement, each Lender:
(a) is deemed to have requested that the Administrative Agent
furnish such Lender, promptly after it becomes available, a copy of
each field audit or examination report (each a "Report" and
collectively, "Reports") prepared by or on behalf of the Administrative
Agent;
(b) expressly agrees and acknowledges that neither the Bank
nor the Administrative Agent (i) makes any representation or warranty
as to the accuracy of any Report, or (ii) shall be liable for any
information contained in any Report;
(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that the Administrative Agent or
the Bank or other party performing any audit or examination will
inspect only specific information regarding the Borrower and will rely
significantly upon the Borrower's books and records, as well as on
representations of the Borrower's personnel;
(d) agrees to keep all Reports confidential and strictly for
its internal use, and not to distribute except to its participants, or
use any Report in any other manner; and
(e) without limiting the generality of any other
indemnification provision contained in this Agreement, agrees: (i) to
hold the Administrative Agent and any such other Lender preparing a
Report harmless from any action the indemnifying Lender may take or
conclusion the indemnifying Lender may reach or draw from any Report in
connection with any loans or other credit accommodations that the
indemnifying Lender has made or may make to the Borrower, or the
indemnifying Lender's participation in, or the indemnifying Lender's
purchase of, a loan or loans of the Borrower; and (ii) to pay and
protect, and indemnify, defend and hold the Administrative Agent and
any such other Lender preparing a Report harmless from and against, the
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claims, actions, proceedings, damages, costs, expenses and other
amounts (including Attorney Costs) incurred by the Administrative Agent
and any such other Lender preparing a Report as the direct or indirect
result of any third parties who might obtain all or part of any Report
through the indemnifying Lender.
12.19 Relation Among Lenders. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender.
ARTICLE 13
GUARANTY
13.1 The Guaranty. Each of the Guarantors hereby jointly and severally
guarantees to each Lender, to each Affiliate of a Lender that provides a Bank
Product to any Credit Party and the Administrative Agent, as primary obligor and
not as surety, the prompt payment of the Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Guarantors hereby further agree that if any of the Obligations are
not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Bank Product Agreements, the obligations of
each Guarantor hereunder shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the Bankruptcy Code or any comparable provisions
of any applicable state law.
13.2 Obligations Unconditional. The obligations of the Guarantors under
Section 13.1 are joint and several, absolute and unconditional, irrespective of
the value, genuineness, validity, regularity or enforceability of any of the
Loan Documents, the Bank Product Agreements or any other agreement or instrument
referred to therein, or any substitution, release, impairment or exchange of any
other guarantee of or security for any of the Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 13.2 that
the obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor shall
have no right of subrogation, indemnity, reimbursement or contribution against
the Borrower or any other Guarantor for amounts paid under this Section 13 until
such time as the Lenders (and any Affiliates of Lenders entering into Bank
Product
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Agreements) have been paid in full, all Commitments under this Credit Agreement
have been terminated and no Person or Governmental Authority shall have any
right to request any return or reimbursement of funds from the Lenders in
connection with monies received under the Loan Documents or Bank Product
Agreements between any Credit Party and any Lender, or any Affiliate of a
Lender. Without limiting the generality of the foregoing, it is agreed that, to
the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of any
of the Loan Documents or any Bank Product Agreement between any Credit
Party and any Lender, or any Affiliate of a Lender or any other
agreement or instrument referred to in the Loan Documents or such
Hedging Agreements or Treasury Management Agreements shall be done or
omitted;
(c) the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any of the Loan
Documents, any Bank Product Agreement between any Credit Party and any
Lender, or any Affiliate of a Lender or any other agreement or
instrument referred to in the Loan Documents or such Bank Product
Agreements shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative
Agent or any Lender or Lenders as security for any of the Obligations
shall fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Loan Documents, any Bank Product Agreement between any Credit Party and any
Lender, or any Affiliate of a Lender or any other agreement or instrument
referred to in the Loan Documents or such Bank Product Agreements, or against
any other Person under any other guarantee of, or security for, any of the
Obligations.
13.3 Reinstatement. The obligations of the Guarantors under this
Section 13.3 shall be automatically reinstated if and to the extent that for any
reason any payment by or on
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behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
13.4 Certain Additional Waivers. Each Guarantor agrees that such
Guarantor shall have no right of recourse to security for the Obligations,
except through the exercise of rights of subrogation pursuant to Section 13.2
and through the exercise of rights of contribution pursuant to Section 13.6.
13.5 Remedies. The Guarantors agree that, to the fullest extent
permitted by law, as between the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the Obligations may be
declared to be forthwith due and payable as provided in Section 9.2 (and shall
be deemed to have become automatically due and payable in the circumstances
provided in said Section 9.2) for purposes of Section 13.1 notwithstanding any
stay, injunction or other prohibition preventing such declaration (or preventing
the Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Obligations
being deemed to have become automatically due and payable), the Obligations
(whether or not due and payable by any other Person) shall forthwith become due
and payable by the Guarantors for purposes of Section 13.1. The Guarantors
acknowledge and agree that their obligations hereunder are secured in accordance
with the terms of the Security Agreement and the other Loan Documents and that
the Lenders may exercise their remedies thereunder in accordance with the terms
thereof.
13.6 Rights of Contribution. The Guarantors hereby agree as among
themselves that, if any Guarantor shall make an Excess Payment (as defined
below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor's Contribution Share (as
defined below) of such Excess Payment. The payment obligations of any Guarantor
under this Section 13.6 shall be subordinate and subject in right of payment to
the prior payment in full to the Administrative Agent and the Lenders of the
Guaranteed Obligations (as defined below), and none of the Guarantors shall
exercise any right or remedy under this Section 13.6 against any other Guarantor
until payment and satisfaction in full of all of the Obligations. For purposes
of this Section 13.6, (a) "Guaranteed Obligations" shall mean any obligations
arising under the other provisions of this Section 13; (b) "Excess Payment"
shall mean the amount paid by any Guarantor in excess of its Pro Rata Share of
any Guaranteed Obligations; (c) "Pro Rata Share" shall mean, for any Guarantor
in respect of any payment of Guaranteed Obligations, the ratio (expressed as a
percentage) as of the date of such payment of Guaranteed Obligations of (i) the
amount by which the aggregate present fair salable value of all of its assets
and properties exceeds the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but
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excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of all of the Credit Parties exceeds the amount of all of the debts
and liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit Parties hereunder) of
the Credit Parties; provided, however, that, for purposes of calculating the Pro
Rata Shares of the Guarantors in respect of any payment of Guaranteed
Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such
payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such payment; and (d) "Contribution Share" shall mean, for any Guarantor in
respect of any Excess Payment made by any other Guarantor, the ratio (expressed
as a percentage) as of the date of such Excess Payment of (i) the amount by
which the aggregate present fair salable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of the Credit Parties other than the maker of such Excess Payment
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Credit Parties) of the Credit Parties other than the maker of
such Excess Payment; provided, however, that, for purposes of calculating the
Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess
Payment shall be deemed to have been a Guarantor on the date of such Excess
Payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such Excess Payment. This Section 4.6 shall not be deemed to affect any
right of subrogation, indemnity, reimbursement or contribution that any
Guarantor may have under applicable law against the Borrower in respect of any
payment of Guaranteed Obligations.
13.7 Guarantee of Payment; Continuing Guarantee. The guarantee in this
Section 13 is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Obligations whenever arising.
ARTICLE 14
MISCELLANEOUS
14.1 No Waivers; Cumulative Remedies. No failure by the Administrative
Agent or any Lender to exercise any right, remedy, or option under this
Agreement or any present or future supplement thereto, or in any other agreement
between or among the Borrower and the Administrative Agent and/or any Lender, or
delay by the Administrative Agent or any Lender in exercising the same, will
operate as a waiver thereof. No waiver by the Administrative Agent or any Lender
will be effective unless it is in writing, and then only to the extent
specifically stated. No waiver by the Administrative Agent or the Lenders on any
occasion shall affect or diminish the Administrative Agent's and each Lender's
rights thereafter to require strict performance by the Borrower of any provision
of this Agreement. The Administrative
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Agent and the Lenders may proceed directly to collect the Obligations without
any prior recourse to the Collateral. The Administrative Agent's and each
Lender's rights under this Agreement will be cumulative and not exclusive of any
other right or remedy which the Administrative Agent or any Lender may have.
14.2 Severability. The illegality or unenforceability of any provision
of this Agreement or any Loan Document or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or enforceability
of the remaining provisions of this Agreement or any instrument or agreement
required hereunder.
14.3 Governing Law; Choice of Forum; Service of Process.
(a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS PROVIDED THAT PERFECTION
ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY GIVE EFFECT TO APPLICABLE CHOICE
OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9 OF THE UCC) OF THE STATE OF
GEORGIA; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF GEORGIA OR OF THE UNITED STATES OF AMERICA LOCATED IN XXXXXX COUNTY, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING THE FOREGOING: (1) THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR
PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION THE ADMINISTRATIVE AGENT OR THE LENDERS DEEM NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE
OBLIGATIONS AND (2) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
(c) THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER AT ITS
ADDRESS SET FORTH IN SECTION 13.8 AND
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SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME
SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID. NOTHING
CONTAINED HEREIN SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR THE LENDERS
TO SERVE LEGAL PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.
14.4 WAIVER OF JURY TRIAL. THE BORROWER, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED
TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY ADMINISTRATIVE
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.5 Survival of Representations and Warranties. All of the Borrower's
representations and warranties contained in this Agreement shall survive the
execution, delivery, and acceptance thereof by the parties, notwithstanding any
investigation by the Administrative Agent or the Lenders or their respective
Administrative Agents.
14.6 Other Security and Guaranties. The Administrative Agent, may,
without notice or demand and without affecting the Borrower's obligations
hereunder, from time to time: (a) take from any Person and hold collateral
(other than the Collateral) for the payment of all or any part of the
Obligations and exchange, enforce or release such collateral or any part
thereof; and (b) accept and hold any endorsement or guaranty of payment of all
or any part of the Obligations and release or substitute any such endorser or
guarantor, or any Person who has given any Lien in any other collateral as
security for the payment of all or any part of the Obligations, or any other
Person in any way obligated to pay all or any part of the Obligations.
14.7 Fees and Expenses. The Borrower agrees to pay to the
Administrative Agent, for its benefit, on demand, all costs and expenses that
Administrative Agent pays or incurs in connection with the negotiation,
preparation, syndication, consummation, administration, enforcement, and
termination of this Agreement or any of the other Loan Documents, including: (a)
Attorney Costs; (b) costs and expenses (including attorneys' and paralegals'
fees and disbursements) for any amendment, supplement, waiver, consent, or
subsequent closing in connection with the Loan Documents and the transactions
contemplated
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thereby; (c) costs and expenses of lien and title searches and title insurance;
(d) taxes, fees and other charges for recording the Mortgages, filing financing
statements and continuations, and other actions to perfect, protect, and
continue the Administrative Agent's Liens (including costs and expenses paid or
incurred by the Administrative Agent in connection with the consummation of
Agreement); (e) sums paid or incurred to pay any amount or take any action
required of the Borrower under the Loan Documents that the Borrower fails to pay
or take; (f) costs of appraisals, inspections, and verifications of the
Collateral, including travel, lodging, and meals for inspections of the
Collateral and the Borrower's operations by the Administrative Agent plus the
Administrative Agent's then customary charge for field examinations and audits
and the preparation of reports thereof as described in the Fee Letter; (g) costs
and expenses of forwarding loan proceeds, collecting checks and other items of
payment, and establishing and maintaining Payment Accounts and lock boxes; (h)
costs and expenses of preserving and protecting the Collateral; and (i) costs
and expenses (including Attorneys' Costs) paid or incurred to obtain payment of
the Obligations, enforce the Administrative Agent's Liens, sell or otherwise
realize upon the Collateral, and otherwise enforce the provisions of the Loan
Documents, or to defend any claims made or threatened against the Administrative
Agent or any Lender arising out of the transactions contemplated hereby
(including preparations for and consultations concerning any such matters). The
foregoing shall not be construed to limit any other provisions of the Loan
Documents regarding costs and expenses to be paid by the Borrower. All of the
foregoing costs and expenses shall be charged to the Borrower's Loan Account as
Revolving Loans as described in Section 3.7.
14.8 Notices. Except as otherwise provided herein, all notices, demands
and requests that any party is required or elects to give to any other shall be
in writing, or by a telecommunications device capable of creating a written
record, and any such notice shall become effective (a) upon personal delivery
thereof, including, but not limited to, delivery by overnight mail and courier
service, (b) two (2) days after it shall have been mailed by United States mail,
first class, certified or registered, with postage prepaid, or (c) in the case
of notice by such a telecommunications device, when properly transmitted, in
each case addressed to the party to be notified as follows:
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If to the Administrative Agent or to the Bank:
Bank of America, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Business Credit-
Account Executive
Telecopy No.: (000) 000-0000
with copies to:
Parker, Hudson, Rainer & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
1500 Marquis Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to a Credit Party:
xxxxxx.xxx, Inc.
000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention : Ms. Xxxxxx Xxxxx, Treasurer
Telecopy No.: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons designated above to
receive copies shall not adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
14.9 Waiver of Notices. Unless otherwise expressly provided herein, the
Borrower waives presentment, and notice of demand or dishonor and protest as to
any instrument, notice of intent to accelerate the Obligations and notice of
acceleration of the Obligations, as well as any and all other notices to which
it might otherwise be entitled. No notice to or demand on the Borrower which the
Administrative Agent or any Lender may elect to give shall entitle the Borrower
to any or further notice or demand in the same, similar or other circumstances.
14.10 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of the respective representatives, successors, and
assigns of the parties hereto; provided, however, that no interest herein may be
assigned by the Borrower without prior written consent of the Administrative
Agent and each Lender. The rights and benefits of the
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Administrative Agent and the Lenders hereunder shall, if such Persons so agree,
inure to any party acquiring any interest in the Obligations or any part
thereof.
14.11 Indemnity of the Administrative Agent and the Lenders by the
Borrower.
(a) The Borrower agrees to defend, indemnify and hold the
Administrative Agent-Related Persons, and each Lender and each of its respective
officers, directors, employees, counsel, representatives, Administrative Agents
and attorneys-in-fact (each, an "Indemnified Person") harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time (including at any
time following repayment of the Loans and the termination, resignation or
replacement of the Administrative Agent or replacement of any Lender) be imposed
on, incurred by or asserted against any such Person in any way relating to or
arising out of this Agreement or any document contemplated by or referred to
herein, or the transactions contemplated hereby, or any action taken or omitted
by any such Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of this
Agreement, any other Loan Document, or the Loans or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the willful misconduct
of such Indemnified Person. The agreements in this Section shall survive payment
of all other Obligations.
(b) The Borrower agrees to indemnify, defend and hold harmless
the Administrative Agent and the Lenders from any loss or liability directly or
indirectly arising out of the use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal or presence of a hazardous
substance relating to the Borrower's operations, business or property. This
indemnity will apply whether the hazardous substance is on, under or about the
Borrower's property or operations or property leased to the Borrower. The
indemnity includes but is not limited to Attorneys Costs. The indemnity extends
to the Administrative Agent and the Lenders, their parents, affiliates,
subsidiaries and all of their directors, officers, employees, Administrative
Agents, successors, attorneys and assigns. "Hazardous substances" means any
substance, material or waste that is or becomes designated or regulated as
"toxic," "hazardous," "pollutant," or "contaminant" or a similar designation or
regulation under any federal, state or local law (whether under common law,
statute, regulation or otherwise) or judicial or administrative interpretation
of such, including petroleum or natural gas. This indemnity will survive
repayment of all other Obligations.
14.12 Limitation of Liability. NO CLAIM MAY BE MADE BY THE BORROWER,
ANY LENDER OR OTHER PERSON AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, OR THE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES,
ADMINISTRATIVE AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE 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 OTHER LOAN
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DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND
THE BORROWER AND EACH LENDER HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON ANY
CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR
SUSPECTED TO EXIST IN ITS FAVOR.
14.13 Final Agreement. This Agreement amends and restates the Prior
Agreement (as defined in the recitals to this Agreement) and this Agreement,
together with the other Loan Documents, are intended by the Borrower, the
Administrative Agent and the Lenders to be the final, complete, and exclusive
expression of the agreement between them. This Agreement and the other Loan
Documents supersede any and all prior oral or written agreements relating to the
subject matter hereof, except for the Fee Letter. Nothing contained herein shall
be deemed to be or operate as a novation or an accord and satisfaction of any of
the Obligations. No modification, rescission, waiver, release, or amendment of
any provision of this Agreement or any other Loan Document shall be made, except
by a written agreement signed by the Borrower and a duly authorized officer of
each of the Administrative Agent and the requisite Lenders.
14.14 Counterparts. This Agreement may be executed in any number of
counterparts, and by the Administrative Agent, each Lender and the Borrower in
separate counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
14.15 Captions. The captions contained in this Agreement are for
convenience of reference only, are without substantive meaning and should not be
construed to modify, enlarge, or restrict any provision.
14.16 Right of Setoff. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower, any such notice being waived by the
Borrower to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Lender or any
Affiliate of such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE ANY RIGHT OF SET-OFF,
BANKER'S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF THE
BORROWER HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE PRIOR WRITTEN UNANIMOUS
CONSENT OF THE LENDERS.
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14.17 Confidentiality.
(a) The Borrower hereby consents that the Administrative Agent
and each Lender may issue and disseminate to the public general information
describing the credit accommodation entered into pursuant to this Agreement,
including the name and address of the Borrower and a general description of the
Borrower's business and may use the Borrower's name in advertising and other
promotional material.
(b) Each Lender severally agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the Borrower and
provided to the Administrative Agent or such Lender by or on behalf of the
Borrower, under this Agreement or any other Loan Document, except to the extent
that such information (i) was or becomes generally available to the public other
than as a result of disclosure by the Administrative Agent or such Lender, or
(ii) was or becomes available on a nonconfidential basis from a source other
than the Borrower, provided that such source is not bound by a confidentiality
agreement with the Borrower known to the Administrative Agent or such Lender;
provided, however, that the Administrative Agent and any Lender may disclose
such information (1) at the request or pursuant to any requirement of any
Governmental Authority to which the Administrative Agent or such Lender is
subject or in connection with an examination of the Administrative Agent or such
Lender by any such Governmental Authority; (2) pursuant to subpoena or other
court process; (3) when required to do so in accordance with the provisions of
any applicable Requirement of Law; (4) to the extent reasonably required in
connection with any litigation or proceeding (including, but not limited to, any
bankruptcy proceeding) to which the Administrative Agent, any Lender or their
respective Affiliates may be party; (5) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Loan
Document; (6) to the Administrative Agent's or such Lender's independent
auditors, accountants, attorneys and other professional advisors; (7) to any
prospective Participant or Assignee under any Assignment and Acceptance, actual
or potential, provided that such prospective Participant or Assignee agrees to
keep such information confidential to the same extent required of the
Administrative Agent and the Lenders hereunder; (8) as expressly permitted under
the terms of any other document or agreement regarding confidentiality to which
the Borrower is party or is deemed party with the Administrative Agent or such
Lender, and (9) to its Affiliates.
14.18 Conflicts with Other Loan Documents. Unless otherwise expressly
provided in this Agreement (or in another Loan Document by specific reference to
the applicable provision contained in this Agreement), if any provision
contained in this Agreement conflicts with any provision of any other Loan
Document, the provision contained in this Agreement shall govern and control.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
"BORROWER"
xxxxxx.xxx, Inc.
By: _______________________________________
Name: Xxxxxx Xxxxx
Title: Assistant Secretary and Treasurer
"ADMINISTRATIVE AGENT"
BANK OF AMERICA, N.A., as the
Administrative Agent
By: _______________________________________
Name: Xxxx Xxxxxxx
Title: Vice President
"LENDERS"
Bank of America, N.A., as a Lender
By: _______________________________________
Name: Xxxx Xxxxxxx
Title: Vice President
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SUBSIDIARY GUARANTORS: xxxxxx.xxx USA, Inc., a Delaware corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
ROMAC OF TEXAS, INC., a Texas corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
YBOR HQI, INC., a Florida corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
ROMAC AIRLINES, INC., a Florida corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
ROMAC INTERNATIONAL, INC., a Florida
corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
kforce, INC., a Florida corporation
By: __________________________________
Name: __________________________________
Title: __________________________________
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ROMAC OF TEXAS I, LP, a Texas limited
partnership
By: ROMAC OF TEXAS, INC. its sole general
partner
By: __________________________________
Name: __________________________________
Title: __________________________________
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ANNEX A
TO
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have the
following respective meanings (unless otherwise defined therein), and all
section references in the following definitions shall refer to sections of the
Agreement:
"Accounts" means all of any Credit Party's now owned or
hereafter acquired or arising accounts, as defined in the UCC, including any
rights to payment for the sale or lease of goods or rendition of services,
whether or not they have been earned by performance.
"Account Debtor" means each Person obligated in any way on or
in connection with an Account.
"ACH Transactions" means any cash management or related
services including the automatic clearing house transfer of funds by the Bank
for the account of the Borrower pursuant to agreement or overdrafts.
"Acquisition Loan" means a Revolving Loan the proceeds of
which will be used for an Eligible Acquisition.
"Acquisition Loan Conditions" means in respect of each request
for an Acquisition Loan, each of the following:
(i) the Borrower shall have given Administrative
Agent 15 days' prior notice of its intent to request an
Acquisition Loan;
(ii) No Default or Event of Default exists and no
Default or Event of Default would exist after giving effect to
the proposed Acquisition Loan;
(iii) As of the date of the funding of the requested
Acquisition Loan (based on pro-formas prepared in connection
with the proposed Acquisition in form acceptable to
Administrative Agent), the Borrower shall have not less than
$20,000,000 of Availability;
(iv) the proposed Acquisition is an Eligible
Acquisition; and
(v) the initial funded amount of all prior
Acquisition Loans, together with the amount of any requested
Acquisition Loan, shall not exceed $5,000,000 in the
aggregate.
"Additional Credit Party" means each Person that becomes a
Subsidiary Guarantor after the Closing Date by execution of a Joinder Agreement.
81
"Adjusted Net Earnings from Operations" means, with respect to
any fiscal period of the Borrower, the Borrower's net income after provision for
income taxes for such fiscal period, as determined in accordance with GAAP and
reported on the Financial Statements for such period, excluding any and all of
the following included in such net income: (a) gain or loss arising from the
sale of any capital assets; (b) gain arising from any write-up in the book value
of any asset; (c) earnings of any Person, substantially all the assets of which
have been acquired by the Borrower in any manner, to the extent realized by such
other Person prior to the date of acquisition; (d) earnings of any Person in
which the Borrower has an ownership interest unless (and only to the extent)
such earnings shall actually have been received by the Borrower in the form of
cash distributions; (e) earnings of any Person to which assets of the Borrower
shall have been sold, transferred or disposed of, or into which the Borrower
shall have been merged, or which has been a party with the Borrower to any
consolidation or other form of reorganization, prior to the date of such
transaction; (f) gain arising from the acquisition of debt or equity securities
of the Borrower or from cancellation or forgiveness of Debt; and (g) gain
arising from extraordinary items, as determined in accordance with GAAP, or from
any other non-recurring transaction.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person or which owns, directly or indirectly, ten percent
(10%) or more of the outstanding equity interest of such Person. A Person shall
be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the ownership of
voting securities, by contract, or otherwise.
"Administrative Agent" means the Bank, solely in its capacity
as Administrative Agent for the Lenders, and any successor Administrative Agent.
"Agent Advances" has the meaning specified in Section 1.2(i).
"Administrative Agent's Liens" means the Liens in the
Collateral granted to the Administrative Agent, for the benefit of the Lenders,
Bank, and Administrative Agent pursuant to this Agreement and the other Loan
Documents.
"Administrative Agent-Related Persons" means the
Administrative Agent, together with its Affiliates, and the officers, directors,
employees, counsel, representatives, Administrative Agents and attorneys-in-fact
of the Administrative Agent and such Affiliates.
"Aggregate Revolver Outstandings" means, at any date of
determination: the sum of (a) the unpaid balance of Revolving Loans, (b) the
aggregate amount of Pending Revolving Loans, (c) one hundred percent (100%) of
the aggregate undrawn face amount of all outstanding Letters of Credit, and (d)
the aggregate amount of any unpaid reimbursement obligations in respect of
Letters of Credit.
"Agreement" means the Amended and Restated Credit Agreement to
which this Annex A is attached, as from time to time amended, modified or
restated.
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"Aircraft" means that certain aircraft bearing manufacturer's
Serial No. SN# 38036 and FAA Registration Number N377HS.
"Anniversary Date" means each anniversary of the Closing Date.
"Applicable Margin" means
(i) with respect to Base Rate Revolving Loans and all
other Obligations (other than LIBOR Rate Loans),
.50%; and
(ii) with respect to LIBOR Revolving Loans, 2.70%.
The Applicable Margins shall be adjusted (up or down)
prospectively on a quarterly basis as determined by the Borrower's consolidated
financial performance, commencing with the first day of the first calendar month
that occurs more than 5 days after delivery of the Borrower's quarterly
Financial Statements to Lenders for the fiscal quarter ending March 31, 2001 and
on the last day of each fiscal quarter thereafter, in each case based on
Borrower's consolidated financial performance for the four (4) fiscal quarters
then ending. Adjustments in Applicable Margins shall be determined by reference
to the following grids:
FUNDED DEBT TO EBITDA APPLICABLE MARGIN APPLICABLE APPLICABLE MARGIN FOR
FOR MARGIN FOR UNUSED FEES
LIBOR RATE LOANS BASE RATE LOANS
--------------------- ---------------- --------------- ---------------------
> = 3.00X 325 bps 75 bps 50.0 bps
> = 2.50X 300 bps 50 bps 50.0 bps
> = 2.00X 270 bps 50 bps 37.5 bps
> = 1.50X 250 bps 25 bps 37.5 bps
> = 1.00X 220 bps 25 bps 37.5 bps
> = 0.50X 200 bps 25 bps 25.0 bps
< 0.50X 175 bps 0 bps 25.0 bps
All adjustments in the Applicable Margins after March 31,
2001, shall be implemented quarterly on a prospective basis, for each calendar
month commencing at least 5 days after the date of delivery to the Lenders of
quarterly unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the delivery of those
Financial Statements, the Borrower shall deliver to the Administrative Agent and
the Lenders a certificate, signed by its chief financial officer, setting forth
in reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins. Failure to timely deliver such Financial Statements shall,
in addition to any other remedy provided for in this Agreement, result in an
increase in the Applicable Margins to the highest level set forth in the
foregoing grid, until the first day of the first calendar month following the
delivery of those Financial Statements demonstrating that such an increase is
not required. If a Default or Event
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of Default has occurred and is continuing at the time any reduction in the
Applicable Margins is to be implemented, no reduction may occur until the first
day of the first calendar month following the date on which such Default or
Event of Default is waived or cured.
"Assignee" has the meaning specified in Section 11.2(a).
"Assignment and Acceptance" has the meaning specified in
Section 11.2(a).
"Attorney Costs" means and includes all reasonable fees,
expenses and disbursements of any law firm or other counsel engaged by the
Administrative Agent, the reasonably allocated costs and expenses of internal
legal services of the Administrative Agent.
"Availability" means, at any time the lesser of (a) the
Maximum Revolver Amount or (b) the Borrowing Base minus (c) in each case, the
Aggregate Revolver Outstandings.
"Bank" means Bank of America, N.A., a national banking
association, or any successor entity thereto.
"Bank Product Agreements" means any agreements evidencing or
describing an Bank Product, including (i) credit card agreements; (ii)
agreements in respect of any ACH Transactions; (iii) Treasury Management
Agreements; and (iv) Hedge Agreements.
"Bank Products" means any one or more of the following types
of services or facilities extended to the Borrower by the Bank or any affiliate
of the Bank in reliance on the Bank's agreement to indemnify such affiliate or
any other Lender: (i) credit cards; (ii) ACH Transactions; (iii) cash
management, including controlled disbursement services; and (iv) hedging
arrangements.
"Bank Product Reserves" means all reserves which the
Administrative Agent from time to time establishes in its reasonable discretion
for the Bank Products then provided or outstanding or under any applicable Bank
Product Agreement.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C.Section 101 et seq.).
"Base Rate" means, for any day, the rate of interest in effect
for such day as publicly announced from time to time by the Bank in Charlotte,
North Carolina as its "prime rate" (the "prime rate" being a rate set by the
Bank based upon various factors including the Bank's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate). Any change in the prime rate announced by the Bank shall take effect at
the opening of business on the day specified in the public announcement of such
change. Each Interest Rate based upon the Base Rate shall be adjusted
simultaneously with any change in the Base Rate.
"Base Rate Loans" means, collectively, the Base Rate Revolving
Loans.
"Base Rate Revolving Loan" means a Revolving Loan during any
period in which it bears interest based on the Base Rate.
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"Blocked Account Agreement" means an agreement among the
Borrower, the Administrative Agent and a Clearing Bank, in form and substance
reasonably satisfactory to the Administrative Agent, concerning the collection
of payments which represent the proceeds of Accounts or of any other Collateral.
"Borrowing" means a borrowing hereunder consisting of
Revolving Loans made on the same day by the Lenders to the Borrower or by Bank
in the case of a Borrowing funded by Non-Ratable Loans or by the Administrative
Agent in the case of a Borrowing consisting of an Agent Advance, or the issuance
of Letters of Credit hereunder.
"Borrowing Base" means, at any time, an amount equal to (a)
the sum of (A) eighty-five percent (85%) of the Net Amount of Eligible Accounts;
plus (B) the lesser of (i) seventy percent (70%) of the Net Amount of Eligible
Non-Invoiced Accounts or (ii) $30,000,000; minus (b) Reserves from time to time
established by the Administrative Agent in its reasonable credit judgment.
"Borrowing Base Certificate" means a certificate by a
Responsible Officer of the Borrower, substantially in the form of Exhibit B (or
another form acceptable to the Administrative Agent) setting forth the
calculation of the Borrowing Base, including a calculation of each component
thereof, all in such detail as shall be reasonably satisfactory to the
Administrative Agent. All calculations of the Borrowing Base in connection with
the preparation of any Borrowing Base Certificate shall originally be made by
the Borrower and certified to the Administrative Agent; provided, that the
Administrative Agent shall have the right to review and adjust, in the exercise
of its reasonable credit judgment, any such calculation (1) to reflect its
reasonable estimate of declines in value of any of the Collateral described
therein, and (2) to the extent that such calculation is not in accordance with
this Agreement.
"Business Day" means (a) any day that is not a Saturday,
Sunday, or a day on which banks in Atlanta, Georgia or Charlotte, North Carolina
are required or permitted to be closed, and (b) with respect to all notices,
determinations, fundings and payments in connection with the LIBOR Rate or LIBOR
Rate Loans, any day that is a Business Day pursuant to clause (a) above and that
is also a day on which trading in Dollars is carried on by and between banks in
the London interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"Capital Expenditures" means all payments due (whether or not
paid) in respect of the cost of any fixed asset or improvement, or replacement,
substitution, or addition thereto, which has a useful life of more than one
year, including, without limitation, those costs arising in connection with the
direct or indirect acquisition of such asset by way of increased product or
service charges or in connection with a Capital Lease.
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"Capital Lease" means any lease of property by the Borrower
which, in accordance with GAAP, should be reflected as a capital lease on the
balance sheet of the Borrower.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time deposits and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase agreements
entered into by any Person with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the
following events: (i) any Person or two or more Persons acting in concert shall
have acquired "beneficial ownership," directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of,
control over, Voting Stock of the Borrower (or other securities convertible into
such Voting Stock) representing thirty-three and one third percent (33 1/3%) or
more of the combined voting power of all Voting Stock of the Borrower, or (ii)
during any period of up to 24 consecutive months, commencing after the Closing
Date, individuals who at the beginning of such 24 month period were directors of
the Borrower (together with any new director whose election by the Borrower's
Board of Directors or whose nomination for election by the Borrower's
shareholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was
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previously so approved) cease for any reason to constitute a majority of the
directors of the Borrower then in office. As used herein, "beneficial ownership"
shall have the meaning provided in Rule 13d-3 of the Securities and Exchange
Commission under the Securities Act of 1934.
"Chattel Paper" means all of the Credit Parties' now owned or
hereafter acquired chattel paper, as defined in the UCC, including electronic
chattel paper.
"Clearing Bank" means the Bank or any other banking
institution with whom a Payment Account has been established pursuant to a
Blocked Account Agreement.
"Closing Date" means the date of this Agreement.
"Closing Fee" has the meaning specified in Section 2.4.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all of the Borrower's real and personal
property and all other assets of any Person from time to time subject to
Administrative Agent's Liens securing payment or performance of the Obligations.
"Commitment" means, at any time with respect to a Lender, the
principal amount set forth beside such Lender's name under the heading
"Commitment" on Schedule 1.2 attached to the Agreement or on the signature page
of the Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 11.2, as such Commitment
may be adjusted from time to time in accordance with the provisions of Section
11.2, and "Commitments" means, collectively, the aggregate amount of the
commitments of all of the Lenders.
"Consolidated Parties" means a collective reference to the
Borrower and its Subsidiaries, and "Consolidated Party" means any one of them.
"Contaminant" means any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos in any form or condition, polychlorinated biphenyls
("PCBs"), or any constituent of any such substance or waste.
"Continuation/Conversion Date" means the date on which a Loan
is converted into or continued as a LIBOR Rate Loan.
"Credit Parties" means a collective reference to the Borrower
and the Guarantors, and "Credit Party" means any one of them.
"Credit Support" has the meaning specified in Section 1.4(a).
"Debt" means, without duplication, all liabilities,
obligations and indebtedness of the Borrower to any Person, of any kind or
nature, now or hereafter owing, arising, due or payable, howsoever evidenced,
created, incurred, acquired or owing, whether primary,
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secondary, direct, contingent, fixed or otherwise, consisting of indebtedness
for borrowed money or the deferred purchase price of property, excluding trade
payables, but including (a) all Obligations; (b) all obligations and liabilities
of any Person secured by any Lien on the Borrower's property, even though the
Borrower shall not have assumed or become liable for the payment thereof;
provided, however, that all such obligations and liabilities which are limited
in recourse to such property shall be included in Debt only to the extent of the
book value of such property as would be shown on a balance sheet of the Borrower
prepared in accordance with GAAP; (c) all obligations or liabilities created or
arising under any Capital Lease or conditional sale or other title retention
agreement with respect to property used or acquired by the Borrower, even if the
rights and remedies of the lessor, seller or lender thereunder are limited to
repossession of such property; provided, however, that all such obligations and
liabilities which are limited in recourse to such property shall be included in
Debt only to the extent of the book value of such property as would be shown on
a balance sheet of the Borrower prepared in accordance with GAAP; (d) all
obligations and liabilities under Guaranties and (e) the present value
(discounted at the Base Rate) of lease payments due under synthetic leases.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured, waived, or
otherwise remedied during such time) constitute an Event of Default.
"Default Rate" means a fluctuating per annum interest rate at
all times equal to the sum of (a) the otherwise applicable Interest Rate plus
(b) two percent (2%) per annum. Each Default Rate shall be adjusted
simultaneously with any change in the applicable Interest Rate. In addition, the
Default Rate shall result in an increase in the Letter of Credit Fee by two (2)
percentage points per annum.
"Defaulting Lender" has the meaning specified in Section
12.15(d).
"Designated Account" has the meaning specified in Section
1.2(c).
"Distribution" means, in respect of any corporation: (a) the
payment or making of any dividend or other distribution of property in respect
of capital stock (or any options or warrants for, or other rights with respect
to, such stock) of such corporation, other than distributions in capital stock
(or any options or warrants for such stock) of the same class; or (b) the
redemption or other acquisition by such corporation of any capital stock (or any
options or warrants for such stock) of such corporation.
"Documents" means all documents as such term is defined in the
UCC, including bills of lading, warehouse receipts or other documents of title,
now owned or hereafter acquired by a Credit Party.
"DOL" means the United States Department of Labor or any
successor department or agency.
"Dollar" and "$" means dollars in the lawful currency of the
United States. Unless otherwise specified, all payments under the Agreements
shall be made in Dollars.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such
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Person which is incorporated or organized under the laws of any State of the
United States or the District of Columbia.
"EBITDA" means, with respect to any fiscal period of the
Borrower, Adjusted Net Earnings from Operations, plus, to the extent deducted in
the determination of Adjusted Net Earnings from Operations for that fiscal
period, interest expenses, Federal, state, local and foreign income taxes,
depreciation and amortization.
"Eligible Accounts" means the Accounts which the
Administrative Agent in the exercise of its reasonable commercial discretion
determines to be Eligible Accounts. Without limiting the discretion of the
Administrative Agent to establish other criteria of ineligibility, Eligible
Accounts shall not, unless the Administrative Agent in its sole discretion
elects, include any Account:
(a) with respect to which more than 90 days have elapsed since
the date of the original invoice therefore;
(b) with respect to which any of the representations,
warranties, covenants, and agreements contained in the Security Agreement are
incorrect or have been breached;
(c) with respect to which Account (or any other Account due
from such Account Debtor), in whole or in part, a check, promissory note, draft,
trade acceptance or other instrument for the payment of money has been received,
presented for payment and returned uncollected for any reason;
(d) which represents a progress billing (as hereinafter
defined) or as to which a Credit Party has extended the time for payment without
the consent of the Administrative Agent; for the purposes hereof, "progress
billing" means any invoice for goods sold or leased or services rendered under a
contract or agreement pursuant to which the Account Debtor's obligation to pay
such invoice is conditioned upon a Credit Party's completion of any further
performance under the contract or agreement;
(e) with respect to which any one or more of the following
events has occurred to the Account Debtor on such Account: death or judicial
declaration of incompetency of an Account Debtor who is an individual; the
filing by or against the Account Debtor of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as a
bankrupt, winding-up, or other relief under the bankruptcy, insolvency, or
similar laws of the United States, any state or territory thereof, or any
foreign jurisdiction, now or hereafter in effect; the making of any general
assignment by the Account Debtor for the benefit of creditors; the appointment
of a receiver or trustee for the Account Debtor or for any of the assets of the
Account Debtor, including, without limitation, the appointment of or taking
possession by a "custodian," as defined in the Federal Bankruptcy Code; the
institution by or against the Account Debtor of any other type of insolvency
proceeding (under the bankruptcy laws of the United States or otherwise) or of
any formal or informal proceeding for the dissolution or liquidation of,
settlement of claims against, or winding up of affairs of, the Account Debtor;
the sale, assignment, or transfer of all or any material part of the assets of
the Account Debtor; the nonpayment generally by the Account Debtor of its debts
as they become due; or the cessation of
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the business of the Account Debtor as a going concern;
(f) if fifty percent (50%) or more of the aggregate Dollar
amount of outstanding Accounts owed at such time by the Account Debtor thereon
is classified as ineligible under clause (a) above;
(g) owed by an Account Debtor which: (i) does not maintain its
chief executive office in the United States of America or Canada (other than the
Province of Newfoundland); or (ii) is not organized under the laws of the United
States of America or Canada or any state or province thereof; or (iii) is the
government of any foreign country or sovereign state, or of any state, province,
municipality, or other political subdivision thereof, or of any department,
agency, public corporation, or other instrumentality thereof; except to the
extent that such Account is secured or payable by a letter of credit
satisfactory to the Administrative Agent in its discretion;
(h) owed by an Account Debtor which is an Affiliate or
employee of a Credit Party;
(i) except as provided in clause (k) below, with respect to
which either the perfection, enforceability, or validity of the Administrative
Agent's Liens in such Account, or the Administrative Agent's right or ability to
obtain direct payment to the Administrative Agent of the proceeds of such
Account, is governed by any federal, state, or local statutory requirements
other than those of the UCC;
(j) owed by an Account Debtor to which a Credit Party or any
of its Subsidiaries, is indebted in any way, or which is subject to any right of
setoff or recoupment by the Account Debtor, unless the Account Debtor has
entered into an agreement acceptable to the Administrative Agent to waive setoff
rights; or if the Account Debtor thereon has disputed liability or made any
claim with respect to any other Account due from such Account Debtor; but in
each such case only to the extent of such indebtedness, setoff, recoupment,
dispute, or claim;
(k) owed by the government of the United States of America, or
any department, agency, public corporation, or other instrumentality thereof,
unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C.
Section 3727 et seq.), and any other steps necessary to perfect the
Administrative Agent's Liens therein, have been complied with to the
Administrative Agent's satisfaction with respect to such Account;
(l) owed by any state, municipality, or other political
subdivision of the United States of America, or any department, agency, public
corporation, or other instrumentality thereof and as to which the Administrative
Agent determines that its Lien therein is not or cannot be perfected;
(m) which represents a sale on a xxxx-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or other repurchase or
return basis;
(n) which is evidenced by a promissory note or other
instrument or by chattel paper, unless the original thereof shall have been
delivered to, and the payment terms thereunder are acceptable to, the
Administrative Agent;
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(o) if the Administrative Agent believes, in the exercise of
its reasonable judgment, that the prospect of collection of such Account is
impaired or that the Account may not be paid by reason of the Account Debtor's
financial inability to pay;
(p) with respect to which the Account Debtor is located in any
state requiring the filing of a Notice of Business Activities Report or similar
report in order to permit a Credit Party to seek judicial enforcement in such
State of payment of such Account, unless such Credit Party has qualified to do
business in such state or has filed a Notice of Business Activities Report or
equivalent report for the then current year;
(q) which arises out of a sale not made in the ordinary course
of the Credit Party's business;
(r) with respect to which the goods giving rise to such
Account have not been shipped and delivered to and accepted by the Account
Debtor or the services giving rise to such Account have not been performed by a
Credit Party, and, if applicable, accepted by the Account Debtor, or the Account
Debtor revokes its acceptance of such goods or services;
(s) owed by an Account Debtor which is obligated to a Credit
Party respecting Accounts the aggregate unpaid balance of which exceeds twenty
percent (20%) of the aggregate unpaid balance of all Accounts owed to such
Credit Party at such time by all of such Credit Party' s Account Debtors, but
only to the extent of such excess;
(t) which is not subject to a first priority and perfected
security interest in favor of the Administrative Agent for the benefit of the
Lenders;
(u) which fail to comply in any material respect with the
representations and warranties set forth in Section 5(f) of the Security
Agreement.
If any Account at any time ceases to be an Eligible Account, then such Account
shall promptly be excluded from the calculation of Eligible Accounts.
"Eligible Acquisition" means any transaction or series of
transactions pursuant to or as a result of which the Borrower merges or
consolidates with or otherwise acquire all or a substantial portion of the
ownership interests or assets or properties of any Person (an "Acquisition")
with respect to which all of the Acquisition Conditions and all of the
conditions set forth below have been satisfied in full:
(a) if such Acquisition involves the purchase of stock or
other ownership interests, (i) the acquired Person shall be organized
and existing under the laws of, and shall have its primary place of
business located in, a state of the United States, and (ii) such
Acquisition shall be effected in such a manner as to ensure that the
acquired Person is promptly merged into the Borrower, with the Borrower
being the surviving entity;
(b) the primary business activity of the target is the same or
substantially similar to the business activities of the Borrower;
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(c) the Borrower shall not have assumed or agreed to remain
liable with respect to any Debt (including any material tax or ERISA
liability) of a target, except obligations of a target incurred in the
ordinary course of its business and necessary to the continued
operation of its underlying properties, and such other Debt as
Administrative Agent shall approve, and any other such liabilities or
obligations not permitted to be assumed or otherwise supported by the
Borrower hereunder shall be paid in full on or before the consummation
of such Acquisition;
(d) all assets and properties acquired in connection with any
such Acquisition shall be free and clear of any liens, charges and
other encumbrances other than those constituting Permitted Liens; and
(e) Administrative Agent and Administrative Agent's counsel
shall have conducted, or caused to be conducted by Persons selected by
Administrative Agent, all such due diligence reviews, audits and
investigations (including without limitation, environmental audits) as
they shall have deemed reasonably necessary or appropriate in
connection with the proposed Acquisition, and Administrative Agent
shall be satisfied in its sole discretion with the scope and the
results thereof.
"Eligible Assignee" means (a) a commercial bank, commercial
finance company or other asset based lender, having total assets in excess of
$1,000,000,000; (b) any Lender listed on the signature page of this Agreement;
(c) any Affiliate of any Lender; and (d) if an Event of Default has occurred and
is continuing, any Person reasonably acceptable to the Administrative Agent.
"Eligible Non-Invoiced Accounts" means Accounts (a) which have
been earned by a Credit Party's performance and which are accrued on a Credit
Party's books and records but which have not been invoiced by such Credit party;
(b) which remain uninvoiced for no longer than 45 days after the date on which
the Credit Party's right to payment under such Account was earned; (c) which are
reflected on such Credit Party's books and records in form reasonably acceptable
to Administrative Agent; (d) except for clauses (a) and (b) above, would
otherwise satisfy the criteria applicable to Eligible Accounts generally; and
(e) which the Administrative Agent in the exercise of its reasonable commercial
discretion determines to be Eligible Non-Invoiced Accounts.
"Eligible Securities Repurchase" means any transaction or
series of transactions pursuant to or as a result of which the Borrower redeems
or repurchases its Capital Stock with respect to which all of the conditions set
forth below have been satisfied in full:
(a) no holder of Capital Stock of Borrower to be repurchased
by Borrower is a party to this Agreement or an Affiliate of Borrower or
any of the other Consolidated Parties;
(b) the repurchase of such Capital Stock shall be conducted by
a brokerage firm of national standing and the manner and method of such
repurchase shall comply
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with all applicable laws, rules and regulations governing the
solicitation, tender and sale of registered securities, including
compliance with the Securities Act of 1933, as amended, the Exchange
Act, all rules and regulations promulgated thereunder or by the
Securities and Exchange Commission, and all applicable state and local
securities laws, rules and regulations;
(c) the repurchase of such Capital Stock shall not be
violative of the Florida Business Corporation Act or any other
applicable corporations law; and
(d) after giving effect to any such proposed repurchase of
such Capital Stock Borrower will be Solvent.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for a Release or
injury to the environment.
"Environmental Compliance Reserve" means any reserve which the
Administrative Agent establishes in its reasonable discretion after prior
written notice to the Borrower from time to time for amounts that are reasonably
likely to be expended by the Borrower in order for the Borrower and its
operations and property (a) to comply with any notice from a Governmental
Authority asserting material non-compliance with Environmental Laws, or (b) to
correct any such material non-compliance identified in a report delivered to the
Administrative Agent and the Lenders pursuant to Section 7.7.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
relating to environmental, health, safety and land use matters.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"Equipment" means all of the Credit Parties' now owned and
hereafter acquired machinery, equipment, furniture, furnishings, fixtures, and
other tangible personal property (except Inventory), including embedded
software, motor vehicles with respect to which a certificate of title has been
issued, aircraft, dies, tools, jigs, and office equipment, as well as all of
such types of property leased by the Credit Parties and all of the Credit
Parties' rights and interests with respect thereto under such leases (including,
without limitation, options to purchase); together with all present and future
additions and accessions thereto, replacements therefor, component and auxiliary
parts and supplies used or to be used in connection therewith, and all
substitutes for any of the foregoing, and all manuals, drawings, instructions,
warranties and rights with respect thereto; wherever any of the foregoing is
located.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
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"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan, (b) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA, (c) a complete or partial withdrawal by the Borrower or any
ERISA Affiliate from a Multi-employer Plan or notification that a Multi-employer
Plan is in reorganization, (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multi-employer Plan, (e) the occurrence of an event or condition which
might reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multi-employer Plan, or (f) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"Event of Default" has the meaning specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Bank on such day on such transactions as determined by the Administrative
Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Letter" means the letter from Administrative Agent to
Borrower dated November __, 0000, xxxxxxx xxxxx xxxxxxx fees and charges payable
in connection with the provision and syndication credit facilities under this
Agreement.
"Financial Statements" means, according to the context in
which it is used, the financial statements referred to in Sections 5.2 and 6.6
or any other financial statements required
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to be given to the Lenders pursuant to this Agreement.
"Fiscal Year" means the Borrower's fiscal year for financial
accounting purposes. The current Fiscal Year of the Borrower will end on
December 31, 2000.
"Fixed Assets" means the Equipment and Real Estate of the
Borrower.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such Person.
"Funded Debt" means, with respect to any Person, without
duplication, all Debt of such Person which would, in accordance with GAAP,
constitute long term debt, including (a) any Debt with a maturity more than one
(1) year after the creation thereof, (b) any Debt which is renewable or
extendable at the option of the Borrower for a period of more than one (1) year
from the date of the creation of such Debt; and (c) all obligations owing in
respect of Capital Leases, plus (ii) without duplication, current maturities of
long term Debt.
"Funding Date" means the date on which a Borrowing occurs.
"GAAP" means generally accepted accounting principles and
practices set forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the Closing Date.
"General Intangibles" means all of the Credit Parties' now
owned or hereafter acquired general intangibles, choses in action and causes of
action and all other intangible personal property of the Credit Parties of every
kind and nature (other than Accounts), including, without limitation, all
contract rights, payment intangibles, Proprietary Rights, corporate or other
business records, inventions, designs, blueprints, plans, specifications,
patents, patent applications, trademarks, service marks, trade names, trade
secrets, goodwill, copyrights, computer software, customer lists, registrations,
licenses, franchises, tax refund claims, any funds which may become due to the
Credit Parties in connection with the termination of any Plan or other employee
benefit plan or any rights thereto and any other amounts payable to the Credit
Parties from any Plan or other employee benefit plan, rights and claims against
carriers and shippers, rights to indemnification, business interruption
insurance and proceeds thereof, property, casualty or any similar type of
insurance and any proceeds thereof, proceeds of insurance covering the lives of
key employees on which a Credit Party is a beneficiary, rights to receive
dividends, distributions, cash, Instruments and other property in respect of or
in exchange for pledged equity interests or Investment Property and any letter
of credit, guarantee, claim, security interest or other security held by or
granted to a Credit Party.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or
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controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" means a collective reference to each of the
Subsidiary Guarantors.
"Guaranty" means, with respect to any Person, all obligations
of such Person which in any manner directly or indirectly guarantee or assure,
or in effect guarantee or assure, the payment or performance of any
indebtedness, dividend or other obligations of any other Person (the "guaranteed
obligations"), or assure or in effect assure the holder of the guaranteed
obligations against loss in respect thereof, including any such obligations
incurred through an agreement, contingent or otherwise: (a) to purchase the
guaranteed obligations or any property constituting security therefor; (b) to
advance or supply funds for the purchase or payment of the guaranteed
obligations or to maintain a working capital or other balance sheet condition;
or (c) to lease property or to purchase any debt or equity securities or other
property or services.
"Hedge Agreement" means any and all transactions, agreements
or documents now existing or hereafter entered into, which provides for an
interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging the Borrower's exposure to fluctuations
in interest or exchange rates, loan, credit exchange, security or currency
valuations or commodity prices.
"Immaterial Subsidiary" means any Subsidiary of a Credit
Party in which (a) the portion of Consolidated EBITDA for the twelve month
period most recently ending attributable to such Subsidiary does not exceed 5%
of Consolidated EBITDA for such period and (b) the assets of such Subsidiary do
not constitute more than 5% of Total Assets, as of the end of the most recent
fiscal quarter of the Borrower.
"Instruments" means all instruments as such term is defined in
the UCC, now owned or hereafter acquired by a Credit Party.
"Interest Period" means, as to any LIBOR Rate Loan, the period
commencing on the Funding Date of such Loan or on the Continuation/Conversion
Date on which the Loan is converted into or continued as a LIBOR Rate Loan, and
ending on the date one, two, three or six months thereafter as selected by the
Borrower in its Notice of Borrowing, in the form attached hereto as Exhibit D,
or Notice of Continuation/Conversion, in the form attached hereto as Exhibit E,
provided that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period; and
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(c) no Interest Period shall extend beyond the Stated
Termination Date.
"Interest Rate" means each or any of the interest rates,
including the Default Rate, set forth in Section 2.1.
"Inventory" means all of the Credit Parties' now owned and
hereafter acquired inventory, goods and merchandise, wherever located, to be
furnished under any contract of service or held for sale or lease, all returned
goods, raw materials, work-in-process, finished goods (including embedded
software), other materials and supplies of any kind, nature or description which
are used or consumed in the Credit Parties' business or used in connection with
the packing, shipping, advertising, selling or finishing of such goods,
merchandise, and all documents of title or other Documents representing them.
"Investment" means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
assets, Capital Stock, bonds, notes, debentures, partnership, joint ventures or
other ownership interests or other securities of any Person or (b) any deposit
with, or advance, loan or other extension of credit to, any Person (other than
deposits made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution to or
investment in any Person, including, without limitation, any Obligations
(including any support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person.
"Investment Property" means all of the Credit Parties' right
title and interest in and to any and all: (a) securities whether certificated or
uncertificated; (b) securities entitlements; (c) securities accounts; (d)
commodity contracts; or (e) commodity accounts.
"IRS" means the Internal Revenue Service and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12 hereto, executed and delivered by an Additional Credit
Party in accordance with the provisions of Section 7.12.
"Latest Projections" means: (a) on the Closing Date and
thereafter until the Administrative Agent receives new projections pursuant to
Section 5.2(e), the projections of the Borrower's financial condition, results
of operations, and cash flows, for the period commencing on October 1, 2000 and
ending on December 31, 2001 and delivered to the Administrative Agent prior to
the Closing Date; and (b) thereafter, the projections most recently received by
the Administrative Agent pursuant to Section 5.2(f).
"Lender" and "Lenders" have the meanings specified in the
introductory paragraph hereof and shall include the Administrative Agent to the
extent of any Agent Advance outstanding and the Bank to the extent of any
Non-Ratable Loan outstanding; provided that no such Agent Advance or Non-Ratable
Loan shall be taken into account in determining any Lender's Pro Rata Share.
"Letter of Credit" has the meaning specified in Section
1.4(a).
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"Letter of Credit Fee" has the meaning specified in Section
2.6.
"Letter of Credit Issuer" means the Bank, any affiliate of the
Bank or any other financial institution that issues any Letter of Credit
pursuant to this Agreement.
"Letter of Credit Subfacility" means $5,000,000.
"LIBOR Interest Payment Date" means, with respect to a LIBOR
Rate Loan, the Termination Date, the first day of each month during any
applicable Interest Period applicable to such Loan and the last day of such
Interest Period.
"LIBOR Rate" means, for any Interest Period, with respect to
LIBOR Rate Loans, the rate of interest per annum determined pursuant to the
following formula:
LIBOR Rate = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means the rate per annum
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the Offshore Base Rate shall be,
for any Interest Period, the rate per annum appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars
at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates. If for any reason none of the
foregoing rates is available, the Offshore Base Rate shall be, for any
Interest Period, the rate per annum determined by Administrative Agent
as the rate of interest at which dollar deposits in the approximate
amount of the LIBOR Rate Loan comprising part of such Borrowing would
be offered by the Bank's London Branch to major banks in the offshore
dollar market at their request at or about 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.
"Eurodollar Reserve Percentage" means, for any day
during any Interest Period, the reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such
day applicable to member banks under regulations issued from time to
time by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Offshore Rate for each
outstanding LIBOR Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"LIBOR Rate Loans" means, collectively, the LIBOR Revolving
Loans.
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"LIBOR Revolving Loan" means a Revolving Loan during any
period in which it bears interest based on the LIBOR Rate.
"Lien" means: (a) any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, or
contract, and including a security interest, charge, claim, or lien arising from
a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, agreement, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes; (b) to the
extent not included under clause (a), any reservation, exception, encroachment,
easement, right-of-way, covenant, condition, restriction, lease or other title
exception or encumbrance affecting property; and (c) any contingent or other
agreement to provide any of the foregoing.
"Loan Account" means the loan account of the Borrower, which
account shall be maintained by the Administrative Agent.
"Loan Documents" means this Agreement, the Notes, the Security
Agreement, the Pledge Agreement and any other agreements, instruments, and
documents heretofore, now or hereafter evidencing, securing, guaranteeing or
otherwise relating to the Obligations, the Collateral, or any other aspect of
the transactions contemplated by this Agreement.
"Loans" means, collectively, all loans and advances provided
for in Article 1.
"Majority Lenders" means at any date of determination Lenders
whose Pro Rata Shares aggregate more than 50%.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Borrower, the Collateral
or any guarantor of the Obligations; (b) a material impairment of the ability of
the Borrower or any Affiliate of Borrower (other than an Immaterial Subsidiary)
to perform under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against the Credit Parties of any Loan Document to which it is a party.
"Maximum Revolver Amount" means $90,000,000.00.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business of rating
securities.
"Multi-employer Plan" means a "multi-employer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding six (6) years contributed to by the Borrower
or any Eligible Non-Invoiced Accounts.
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"Net Amount of Eligible Accounts/ Net Amount of Eligible
Non-Invoiced Accounts" means, at any time, the gross amount of Eligible Accounts
or Eligible Non-Invoiced Accounts, as the case may be, less sales, excise or
similar taxes, and less discounts, claims, credits, and allowances, accrued
rebates, offsets, deductions, counterclaims, disputes and other defenses of any
nature at any time issued, owing, granted, outstanding, available or claimed.
"Non-Ratable Loan" and "Non-Ratable Loans" have the meanings
specified in Section 1.2(h).
"Notes" means Revolving Loan Notes.
"Notice of Borrowing" has the meaning specified in Section
1.2(b).
"Notice of Continuation/Conversion" has the meaning specified
in Section 2.2(b).
"Obligations" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts owing by the Borrower to
the Administrative Agent and/or any Lender, arising under or pursuant to this
Agreement or any of the other Loan Documents, whether or not evidenced by any
note, or other instrument or document, whether arising from an extension of
credit, opening of a letter of credit, acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect, absolute or
contingent, due or to become due, primary or secondary, as principal or
guarantor, and including all principal, interest, charges, expenses, fees,
attorneys' fees, filing fees and any other sums chargeable to the Borrower
hereunder or under any of the other Loan Documents. "Obligations" includes,
without limitation, (a) all debts, liabilities, and obligations now or hereafter
arising from or in connection with the Letters of Credit and (b) all debts,
liabilities and obligations now or hereafter arising from or in connection with
Bank Products.
"Officer Loan Reserve" means the sum of $1,850,000, for so
long as indebtedness in approximately such amount remains outstanding and
guaranteed by the Borrower on behalf of Xxxxx Xxxxxxxx, Xx.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other Loan
Documents.
"Participant" means any Person who shall have been granted the
right by any Lender to participate in the financing provided by such Lender
under this Agreement, and who shall have entered into a participation agreement
in form and substance satisfactory to such Lender.
"Payment Account" means each bank account established pursuant
to the Security Agreement, to which the proceeds of Accounts and other
Collateral are deposited or credited, and which is maintained in the name of the
Administrative Agent or the Borrower, as the Administrative Agent may determine,
on terms acceptable to the Administrative Agent.
"PBGC" means the Pension Benefit Guaranty Corporation or any
Governmental
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Authority succeeding to the functions thereof.
"Pending Revolving Loans" means, at any time, the aggregate
principal amount of all Revolving Loans requested in any Notice of Borrowing
received by the Administrative Agent which have not yet been advanced.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Borrower sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a Multi-employer Plan has made contributions at
any time during the immediately preceding five (5) plan years.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired or made by
any Consolidated Party in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) Investments
consisting of Capital Stock, obligations, securities or other property received
by any Consolidated Party in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors; (iv) Investments by one
Credit Party in another Credit Party; (v) loans to directors and officers of the
Borrower in an amount not to exceed $5,000,000 in the aggregate at any one time
outstanding to the extent that (1) each such loan is secured by Capital Stock of
the Borrower, (2) no such loan shall have a maturity date later than the Stated
Termination Date, and (3) upon Agent's request, the Borrower shall have promptly
provided to Agent the names of the officers and directors that have obtained
such loans and their respective outstanding balances; (vi) capitalization of a
new Subsidiary; provided, that the Credit Parties comply with the terms of
Section 7.26 hereof with respect to such new Subsidiary; (vii) the acquisition
of the Ybor Property; (viii) Acquisitions made with the proceeds of Acquisition
Loans and (ix) any other acquisition by any Credit Party of any Property
provided that any such acquisition has been approved in writing by the Required
Lenders, in their sole discretion.
"Permitted Liens" means:
(a) Liens for taxes not delinquent or statutory Liens for
taxes in an amount not to exceed $100,000 provided that the payment of such
taxes which are due and payable is being contested in good faith and by
appropriate proceedings diligently pursued and as to which adequate financial
reserves have been established on Borrower's books and records and a stay of
enforcement of any such Lien is in effect;
(b) the Administrative Agent's Liens;
(c) Liens consisting of deposits made in the ordinary course
of business in connection with, or to secure payment of, obligations under
worker's compensation, unemployment insurance, social security and other similar
laws, or to secure the performance of bids, tenders or contracts (other than for
the repayment of Debt) or to secure indemnity, performance or other similar
bonds for the performance of bids, tenders or contracts (other than for the
repayment of Debt) or to secure statutory obligations (other than liens arising
under ERISA or Environmental Liens) or surety or appeal bonds, or to secure
indemnity, performance or other similar bonds;
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(x) Liens securing the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons, provided
that if any such Lien arises from the nonpayment of such claims or demand when
due, such claims or demands do not exceed $100,000 in the aggregate;
(e) Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way, covenants
running with the land, and other similar title exceptions or encumbrances
affecting any Real Estate; provided that they do not in the aggregate materially
detract from the value of the Real Estate or materially interfere with its use
in the ordinary conduct of the Borrower's business; and
(f) Liens arising from judgments and attachments in connection
with court proceedings provided that the attachment or enforcement of such Liens
would not result in an Event of Default hereunder and such Liens are being
contested in good faith by appropriate proceedings, adequate reserves have been
set aside and no material Property is subject to a material risk of loss or
forfeiture and the claims in respect of such Liens are fully covered by
insurance (subject to ordinary and customary deductibles) and a stay of
execution pending appeal or proceeding for review is in effect.
"Permitted Use" means the application of the proceeds of the
Loans for (a) Borrower's working capital purposes, (b) Eligible Acquisitions,
(c) Eligible Securities Repurchases, (d) the refinancing of the outstanding Debt
under the Prior Agreement, and (e) other purposes not inconsistent with the
terms of this Agreement and the other Loan Documents.
"Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, Governmental Authority, or any other
entity.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Borrower sponsors or maintains or to which the Borrower
makes, is making, or is obligated to make contributions and includes any Pension
Plan.
"Pledge Agreement" means the Pledge Agreement dated May 12,
2000, executed in favor of the Administrative Agent by certain of the Credit
Parties, as at any time amended, modified, restated or supplemented from time to
time.
"Proprietary Rights" means all of the Credit Parties' now
owned and hereafter arising or acquired: licenses, franchises, permits, patents,
patent rights, copyrights, works which are the subject matter of copyrights,
trademarks, service marks, trade names, trade styles, patent, trademark and
service xxxx applications, and all licenses and rights related to any of the
foregoing, including those patents, trademarks, service marks, trade names and
copyrights set forth on Schedule 6.12 hereto, and all other rights under any of
the foregoing, all extensions, renewals, reissues, divisions, continuations, and
continuations-in-part of any of the foregoing, and all rights to xxx for past,
present and future infringement of any of the foregoing.
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"Pro Rata Share" means, with respect to a Lender, a fraction
(expressed as a percentage), the numerator of which is the amount of such
Lender's Commitment and the denominator of which is the sum of the amounts of
all of the Lenders' Commitments, or if no Commitments are outstanding, a
fraction (expressed as a percentage), the numerator of which is the amount of
Obligations owed to such Lender and the denominator of which is the aggregate
amount of the Obligations owed to the Lenders, in each case giving effect to a
Lender's participation in Non-Ratable Loans and Agent Advances.
"Real Estate" means all of the Borrower's now or hereafter
owned or leased estates in real property, including, without limitation, all
fees, leaseholds and future interests, together with all of the Borrower's now
or hereafter owned or leased interests in the improvements thereon, the fixtures
attached thereto and the easements appurtenant thereto.
"Release" means a release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration of a
Contaminant into the indoor or outdoor environment or into or out of any Real
Estate or other property, including the movement of Contaminants through or in
the air, soil, surface water, groundwater or Real Estate or other property.
"Reportable Event" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Required Lenders" means at any time Lenders whose Pro Rata
Shares aggregate to 662/3% or more.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of its
property is subject.
"Reserves" means reserves that limit the availability of
credit hereunder, consisting of reserves against Availability or Eligible
Accounts, established by Administrative Agent from time to time in
Administrative Agent's reasonable credit judgment. Without limiting the
generality of the foregoing, the following reserves shall be deemed to be a
reasonable exercise of Administrative Agent's credit judgment: (a) the Bank
Product Reserves, (b) a reserve for accrued, unpaid interest on the Obligations,
(c) reserves for rent at leased locations subject to statutory or contractual
landlord liens, (d) dilution, (e) warehousemen's or bailees' charges, and (f)
the Officer Loan Reservre.
"Responsible Officer" means the chief executive officer or the
president of the Borrower, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants and the preparation of the Borrowing Base Certificate, the chief
financial officer or the treasurer of the Borrower, or any other officer having
substantially the same authority and responsibility.
"Revolving Loans" has the meaning specified in Section 1.2 and
includes each Agent Advance and Non-Ratable Loan.
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"Revolving Loan Note" and "Revolving Loan Notes" have the
meanings specified in Section 1.2(a)(ii).
"Securities Repurchase Loan" means a Revolving Loan the
proceeds of which will be used for Eligible Securities Repurchases.
"Securities Repurchase Loan Conditions" means in respect of
each request for any Securities Repurchase Loan, each of the following:
(i) the Borrower shall have given Administrative
Agent two (2) days' prior written notice of its intent to
request a Securities Repurchase Loan;
(ii) No Default or Event of Default exists, and no
Default or Event of Default would exist after giving effect to
the proposed Securities Repurchase Loan;
(iii) As of the date of the funding of the requested
Securities Repurchase Loan, the Borrower shall have not less
than $20,000,000 of Availability;
(iv) the Capital Stock to be repurchased by the
Borrower is in connection with an Eligible Securities
Repurchase; and
(v) the initial funded amount of all prior Securities
Repurchase Loans, together with the amount of any requested
Securities Repurchase Loan, shall not exceed $55,000,000 in
the aggregate.
"Security Agreement" means the Security Agreement of even
date herewith among the Credit Parties and Administrative Agent for the benefit
of Administrative Agent and other Lenders.
"Settlement" and "Settlement Date" have the meanings specified
in Section 12.15(a)(ii).
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(a) the assets of such Person, at a fair valuation, are in
excess of the total amount of its debts (including contingent
liabilities); and
(b) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
(c) it is then able and expects to be able to pay its debts
(including contingent debts and other commitments) as they mature; and
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(d) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent, the
amount of any contingent liability shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Stated Termination Date" means November 3, 2003.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than fifty percent (50%) of the voting stock or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the Persons identified as
a "Subsidiary Guarantor" on the signature pages hereto and each Additional
Credit Party which may hereafter execute a Joinder Agreement, together with
their successors and permitted assigns, and "Subsidiary Guarantor" means any one
of them.
"Supporting Obligations" shall have the meaning ascribed to
such term in the Security Agreement.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative Agent,
such taxes (including income taxes or franchise taxes) as are imposed on or
measured by the Administrative Agent's or each Lender's net income in any the
jurisdiction (whether federal, state or local and including any political
subdivision thereof) under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized or maintains a lending office.
"Termination Date" means the earliest to occur of (i) the
Stated Termination Date, (ii) the date the Total Facility is terminated either
by the Borrower pursuant to Section 3.2 or by the Required Lenders pursuant to
Section 9.2, and (iii) the date this Agreement is otherwise terminated for any
reason whatsoever pursuant to the terms of this Agreement.
"Total Facility" has the meaning specified in Section 1.1.
"Treasury Management Agreements" means any and all agreements
provided to any Credit Party by a Lender or an Affiliate of a Lender governing
the provision of treasury or cash management services, including, without
limitation, funds transfer, automated clearinghouse, zero balance accounts,
controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services.
"UCC" means the Uniform Commercial Code, as in effect from
time to time, of the State of Georgia or of any other state the laws of which
are required as a result thereof to be
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applied in connection with the issue of perfection of security interests.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"Unused Letter of Credit Subfacility" means an amount equal to
$5,000,000 minus the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit plus, without duplication, (b) the aggregate unpaid
reimbursement obligations with respect to all Letters of Credit.
"Unused Line Fee" has the meaning specified in Section 2.5.
"Voting Stock" means, with respect to any Person, Capital
Stock issued by such Person the holders of which are ordinarily, in the absence
of contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
Accounting Terms. Any accounting term used in the Agreement
shall have, unless otherwise specifically provided herein, the meaning
customarily given in accordance with GAAP, and all financial computations in the
Agreement shall be computed, unless otherwise specifically provided therein, in
accordance with GAAP as consistently applied and using the same method for
inventory valuation as used in the preparation of the Financial Statements.
Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar words refer
to the Agreement as a whole and not to any particular provision of the
Agreement; and Subsection, Section, Schedule and Exhibit references are to the
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including," the words "to" and "until" each mean "to but excluding" and
the word "through" means "to and including."
(iv) The word "or" is not exclusive.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including the Agreement) and other contractual instruments shall be
deemed to include all
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subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of any
Loan Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of the Agreement and other Loan
Documents are for convenience of reference only and shall not affect the
interpretation of the Agreement.
(f) The Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) For purposes of Section 9.1, a breach of a financial
covenant contained in Sections 7.23 or 7.24 shall be deemed to have occurred as
of any date of determination thereof by the Administrative Agent or as of the
last day of any specified measuring period, regardless of when the Financial
Statements reflecting such breach are delivered to the Administrative Agent.
(h) The Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Administrative
Agent, the Borrower and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
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EXHIBIT A
FORM OF REVOLVING LOAN NOTE
108
EXHIBIT B
FORM OF BORROWING BASE CERTIFICATE
109
EXHIBIT C
PRO-FORMA BALANCE SHEET
110
EXHIBIT D
NOTICE OF BORROWING
Date: ______________, 200_
To: Bank of America, N.A. as Administrative Agent for the Lenders who are
parties to the Amended and Restated Credit Agreement dated as of
November 3, 2000 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement") among Xxxxxx.xxx, Inc., certain of its
Affiliates, certain Lenders which are signatories thereto and Bank of
America, N.A., as Administrative Agent
Ladies and Gentlemen:
The undersigned, Xxxxxx.xxx, Inc. (the "Borrower"), refers to
the Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably of the Borrowing specified
below:
1. The Business Day of the proposed Borrowing is _____,
200 .
2. The aggregate amount of the proposed Borrowing is
$_____.
3. The Borrowing is to be comprised of $ of Base Rate
and $_____ of LIBOR Rate Loans.
4. The duration of the Interest Period for the LIBOR
Rate Loans, if any, included in the Borrowing shall
be _____ months.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) The representations and warranties of the Borrower
contained in the Credit Agreement are true and correct as though made on and as
of such date;
(b) No Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing; and
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(c) The proposed Borrowing will not cause the aggregate
principal amount of all outstanding Revolving Loans [plus the aggregate amount
available for drawing under all outstanding Letters of Credit], to exceed the
Borrowing Base or the combined Commitments of the Lenders.
xxxxxx.xxx, Inc.
By: ________________________________
Title: _____________________________
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EXHIBIT E
NOTICE OF CONTINUATION/CONVERSION
Date: ________ , 200___
To: Bank of America, N.A. as Administrative Agent for the Lenders to the
Amended and Restated Credit Agreement dated as of November 3, 2000 (as
extended, renewed, amended or restated from time to time, the "Credit
Agreement") among Xxxxxx.xxx, Inc., certain of its Affiliates, certain
Lenders which are signatories thereto and Bank of America, N.A., as
Administrative Agent
Ladies and Gentlemen:
The undersigned, Xxxxxx.xxx, Inc. (the "Borrower"), refers to
the Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably of the [conversion]
[continuation] of the Loans specified herein, that:
1. The Continuation/Conversion Date is _____, 200 .
2. The aggregate amount of the Loans to be [converted]
[continued] is $_____.
3. The Loans are to be [converted into] [continued as]
[LIBOR Rate] [Base Rate] Loans.
4. The duration of the Interest Period for the LIBOR
Rate Loans included in the [conversion]
[continuation] shall be _____ months.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the proposed
Continuation/Conversion Date, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) The representations and warranties of the Borrower
contained in the Credit Agreement are true and correct as though made on and as
of such date;
(b) Default or Event of Default has occurred and is
continuing, or would result from such proposed [conversion] [continuation]; and
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(c) The proposed conversion-continuation will not cause the
aggregate principal amount of all outstanding Revolving Loans [plus the
aggregate amount available for drawing under all outstanding Letters of Credit]
to exceed the Borrowing Base or the combined Commitments of the Lenders.
xxxxxx.xxx, Inc.
By: _________________________________
Title: ______________________________
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EXHIBIT F
[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of ____________________, 200_ is made between
______________________________ (the "Assignor") and __________________________
(the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Amended and
Restated Credit Agreement dated as of November 3, 2000 (as amended, amended and
restated, modified, supplemented or renewed, the "Credit Agreement") among
Xxxxxx.xxx, Inc., a Florida corporation (the "Borrower"), certain of Borrower's
Affiliates, the several financial institutions from time to time party thereto
(including the Assignor, the "Lenders"), and Bank of America, N. A., as
Administrative Agent for the Lenders (the "Administrative Agent"). Any terms
defined in the Credit Agreement and not defined in this Assignment and
Acceptance are used herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor
has committed to making Loans (the "Committed Loans") to the Borrower in an
aggregate amount not to exceed $__________ (the "Commitment");
WHEREAS, the Assignor has made Committed Loans in the
aggregate principal amount of $__________ to the Borrower
WHEREAS, [the Assignor has acquired a participation in its pro
rata share of the Lenders' liabilities under Letters of Credit in an aggregate
principal amount of $____________ (the "L/C Obligations")] [no Letters of Credit
are outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part
of the] [all] rights and obligations of the Assignor under the Credit Agreement
in respect of its Commitment, together with a corresponding portion of each of
its outstanding Committed Loans and L/C Obligations, in an amount equal to
$__________ (the "Assigned Amount") on the terms and subject to the conditions
set forth herein and the Assignee wishes to accept assignment of such rights and
to assume such obligations from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) __% (the
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"Assignee's Percentage Share") of (A) the Commitment, the Committed Loans and
the L/C Obligations of the Assignor and (B) all related rights, benefits,
obligations, liabilities and indemnities of the Assignor under and in connection
with the Credit Agreement and the Loan Documents.
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender. It is the
intent of the parties hereto that the Commitment of the Assignor shall, as of
the Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Sections __ and __ of the Credit Agreement to the extent such rights relate to
the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Commitment will be
$__________.
(d) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignor's Commitment will be
$__________.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the Assignee's Pro Rata Share of the principal amount of all
Committed Loans.
(b) The Assignee further agrees to pay to the Administrative
Agent a processing fee in the amount specified in Section 11.2(a) of the Credit
Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective
Date with respect to the Commitment, and Committed Loans and L/C Obligations
shall be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Amount
shall be for the account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest, fees and
other amounts which it may receive to which the other party is entitled pursuant
to the preceding sentence and pay to the other party any such amounts which it
may receive promptly upon receipt.
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4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of
the Credit Agreement and the Schedules and Exhibits thereto, together with
copies of the most recent financial statements of the Borrower, and such other
documents and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Assignment and Acceptance;
and (b) agrees that it will, independently and without reliance upon the
Assignor, 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 and legal decisions in taking or not taking action under the
Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be __________, 200_ (the
"Effective Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be
executed and delivered by the Assignor and
the Assignee;
[(ii) the consent of the Administrative Agent
required for an effective assignment of the
Assigned Amount by the Assignor to the
Assignee shall have been duly obtained and
shall be in full force and effect as of the
Effective Date;]
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this
Assignment and Acceptance;
[(iv) the Assignee shall have complied with
Section 11.2 of the Credit Agreement (if
applicable);]
(v) the processing fee referred to in Section
2(b) hereof and in Section 11.2(a) of the
Credit Agreement shall have been paid to the
Administrative Agent; and
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Borrower and the Administrative
Agent for acknowledgment by the Administrative Agent, a Notice of Assignment in
the form attached hereto as Schedule 1.
6. [Administrative Agent. [INCLUDE ONLY IF ASSIGNOR IS
ADMINISTRATIVE AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as Administrative Agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Administrative Agent
by the Lenders pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Administrative Agent under the Credit
Agreement.]
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7. Withholding Tax.
The Assignee (a) represents and warrants to the Lender, the
Administrative Agent and the Borrower that under applicable law and treaties no
tax will be required to be withheld by the Lender with respect to any payments
to be made to the Assignee hereunder, (b) agrees to furnish (if it is organized
under the laws of any jurisdiction other than the United States or any State
thereof) to the Administrative Agent and the Borrower prior to the time that the
Administrative Agent or Borrower is required to make any payment of principal,
interest or fees hereunder, duplicate executed originals of either U.S. Internal
Revenue Service Form W-8ECI or U.S. Internal Revenue Service Form W-8BEN
(wherein the Assignee claims entitlement to the benefits of a tax treaty that
provides for a complete exemption from U.S. federal income withholding tax on
all payments hereunder) and agrees to provide new Forms W-8ECI or W-8BEN upon
the expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto, duly
executed and completed by the Assignee, and (c) agrees to comply with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or statements of the Borrower, or the performance or observance by the Borrower,
of any of its respective obligations under the Credit Agreement or any other
instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute
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and deliver this Assignment and Acceptance and any other documents required or
permitted to be executed or delivered by it in connection with this Assignment
and Acceptance, and to fulfill its obligations hereunder; (ii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance; and apart from any agreements or undertakings
or filings required by the Credit Agreement, no further action by, or notice to,
or filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; [and (iv) it is an
Eligible Assignee.]
9. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Borrower or the Administrative Agent, which may
be required in connection with the assignment and assumption contemplated
hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA. The Assignor and
the Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in The State of Georgia over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such
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[ ] State or Federal court. Each party to this Assignment and Acceptance
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR
STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By: __________________________________
Title: _______________________________
Address: _____________________________
[ASSIGNEE]
By: __________________________________
Title: _______________________________
Address: _____________________________
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SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 200_
Bank of America, N.A
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Business Credit-Account Executive
Re: xxxxxx.xxx, Inc.
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as
of November 3, 2000 (as amended, amended and restated, modified, supplemented or
renewed from time to time the "Credit Agreement") among Xxxxxx.xxx, Inc. (the
"Borrower"), the Lenders referred to therein and Bank of America, N. A., as
Administrative Agent for the Lenders (the "Administrative Agent"). Terms defined
in the Credit Agreement are used herein as therein defined.
1. We hereby give you notice of, and request your consent to,
the assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including the right, title and interest of the Assignor in
and to the Commitments of the Assignor, all outstanding Loans made by the
Assignor and the Assignor's participation in the Letters of Credit pursuant to
the Assignment and Acceptance Agreement attached hereto (the "Assignment and
Acceptance"). We understand and agree that the Assignor's Commitment, as of ,
200 , is $ ___________, the aggregate amount of its outstanding Loans is
$_____________, and its participation in L/C Obligations is $_____________.
2. The Assignee agrees that, upon receiving the consent of the
Administrative Agent and, if applicable, the Borrower to such assignment, the
Assignee will be bound by the terms of the Credit Agreement as fully and to the
same extent as if the Assignee were the Lender originally holding such interest
in the Credit Agreement.
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3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: ______________________________
Address: ____________________________________
____________________________________
____________________________________
Attention: __________________________________
Telephone: (___) ___________________________
Telecopier: (___)___________________________
Telex (Answerback): _________________________
(B) Payment Instructions:
Account No.: _______________________________
At: _____________________________
_____________________________
_____________________________
Reference: _________________________________
Attention: _________________________________
4. You are entitled to rely upon the representations,
warranties and covenants of each of the Assignor and Assignee contained in the
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or Administrative Agents as of the date first
above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By: ___________________________________
Title: ________________________________
[NAME OF ASSIGNEE]
By: ___________________________________
Title: ________________________________
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ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
Bank of America, N. A.
as Administrative Agent
By: ______________________________
Title: ___________________________
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SCHEDULE 1.2
COMMITMENTS
Pro Rata Share
Lender Revolving Loan Commitment (3 decimals)
------ ------------------------- ------------
Bank of America, N.A. $90,000,000 100%
100%
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