AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 26, 1998
(this "Agreement") among PHP Healthcare Corporation, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the Initial Lenders (the "Initial
Lenders"), NationsBank, N.A. ("NationsBank"), as initial issuing bank (in such
capacity, the "Initial Issuing Bank"), NationsBank as administrative agent and
collateral agent (in such capacities and together with any successor appointed
pursuant to Article VII, the "Administrative Agent") for the Lender Parties (as
hereinafter defined), and NationsBanc Xxxxxxxxxx Securities LLC ("NMS"), as sole
arranger and syndication agent (the "Arranger and Syndication Agent").
PRELIMINARY STATEMENTS:
(1) The Borrower entered into a Credit Agreement dated as of
October 31, 1997, as heretofore amended (as so amended, the "Existing Credit
Agreement") with the banks, financial institutions and other institutional
lenders party thereto (the "Existing Lenders"), and NationsBank as
administrative agent for the Existing Lenders. The Borrower intends to refinance
(the "Refinancing") all of the outstanding Debt (as hereinafter defined) under
the Existing Credit Agreement.
(2) The Borrower has requested an increase in the aggregate
amount of the credit facilities under the Existing Credit Agreement and certain
other modifications thereto.
(3) The Lender Parties have indicated their willingness to
agree to amend and restate the Existing Credit Agreement and to lend up to
$80,000,000 to the Borrower on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained at its office at NationsBank, N.A., 000
Xxxxx Xxxxx Xxxxxx,00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Account
No. 136621-22506, Attention: Corporate Credit Services.
"Advance" means a Tranche A Revolving Credit Advance, Letter
of Credit Advance, or a Tranche B Revolving Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Alternate Base Rate" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a) the rate of interest announced publicly by
NationsBank in Charlotte, North Carolina, from time to time,
as its prime rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Alternate Base Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(i).
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Alternate Base Rate Advance and such Lender Party's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means (x) for the period from the Closing
Date through November 30, 1998, 1-1/2% per annum for Alternate Base
Rate Advances and 2-1/2% per annum for Eurodollar Rate Advances and (y)
thereafter a percentage per annum determined by reference to the
Leverage Ratio as set forth below:
Eurodollar Alternate Base Rate
Rate Advances Advances
Level I
less than 2.00:1 1.25% 0.25%
Level II
2.00:1 or greater,
but less than 2.50:1 1.50% 0.50%
Level III
2.50:1 or greater,
but less than 3.00:1 1.75% 0.75%
Level IV
3.00:1 or greater 2.00% 1.00%
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The Applicable Margin for each Alternative Base Rate Advance shall be determined
by reference to the Leverage Ratio in effect from time to time and the
Applicable Margin for each Eurodollar Rate Advance shall be determined by
reference to the Leverage Ratio in effect on the first day of each Interest
Period for such Advance; provided, however, that no change in the Applicable
Margin shall be effective until three Business Days after the date on which the
Administrative Agent receives financial statements pursuant to Section 5.03(c)
or (d) and a certificate of the chief financial officer of the Borrower
demonstrating such ratio.
"Applicable Percentage" means (x) for the period from the
Closing Date through November 30, 1998, 0.50% and (y) thereafter, a
percentage per annum determined by the Leverage Ratio as set forth
below:
Percentage
Level I
Less than 2.50:1 0.375%
Level II
2.50:1 or greater 0.50%
The Applicable Percentage shall be determined by reference to the
Leverage Ratio in effect from time to time; provided, however, that no
change in the Applicable Percentage shall be effective until three
Business Days after the date on which the Administrative Agent receives
financial statements pursuant to Section 5.03(c) or (d) and a
certificate of the chief financial officer of the Borrower
demonstrating such ratio.
"Appropriate Lender" means, at any time, with respect to (a)
either the Tranche A Revolving Credit Facility or the Tranche B
Revolving Credit Facility, a Lender that has a Commitment with respect
to such Facility at such time, and (b) the Letter of Credit Facility,
(i) the Issuing Bank and (ii) if the other Tranche A Revolving Credit
Lenders have made Letter of Credit Advances pursuant to Section 2.03
(b) that are outstanding at such times, each such Tranche A Revolving
Credit Lender.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with NationsBank, N.A. at its office at
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Account
No. 3750527254.
"Borrowing" means a Tranche A Revolving Credit
Borrowing or a Tranche B Revolving Credit
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Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in Charlotte, North Carolina
and, if the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings are carried on in the London interbank
market.
"Capital Expenditures" means, for any Person for any period,
the sum of (a) all cash expenditures made, directly or indirectly, by
such Person or any of its Subsidiaries during such period for
equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have
been or should be, in accordance with GAAP, reflected as additions to
property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the
Security Agreement.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 180 days from the date of
issuance thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any State
thereof and has total assets in excess of $500,000,000, (c) commercial
paper in an aggregate amount of no more than $5,000,000 per issuer
outstanding at any time, issued by any corporation organized under the
laws of any State of the United States and rated at least "Prime-1" (or
the then equivalent grade) by Xxxxx'x Investors Service, Inc. or "A-1"
(or the then equivalent grade) by Standard & Poor's Ratings Group, (d)
investments in money market or mutual funds which invest solely in
assets of the type described in clauses (a), (b) or (c) above or (e)
unleveraged repurchase obligations with respect to any security
described in clause (a) above and entered into with a depositary
institution or trust company (acting as principal) whose long-term
credit rating is at least "A1" (or the then equivalent grade) by
Xxxxx'x Investors Service or "A+" (or the then equivalent grade) by
Standard & Poor's Ratings Group or whose short-term credit rating is at
least "Prime-1" (or the then equivalent grade) by Xxxxx'x Investors
Service, Inc. or "A-1" (the then equivalent grade) by Standard & Poor's
Ratings Group.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Closing Date" means May 26, 1998.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.
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"Collateral Documents" means the Security Agreement, the
Mortgages and any other agreement that creates or purports to create a
Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"Collateral Grantor" means each of the Borrower and each
Subsidiary Guarantor.
"Commitment" means a Tranche A Revolving Credit Commitment, a
Tranche B Revolving Credit Commitment or a Letter of Credit Commitment.
"Confidential Information" means the Information and any
further information that the Borrower furnishes to the Administrative
Agent or any Lender Party in a writing designated as confidential, but
does not include any such information that is or becomes generally
available to the public or that is or becomes available to the
Administrative Agent or such Lender Party from a source other than the
Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Constitutive Documents" means, with respect to any Person,
the certificate of incorporation or registration (including, if
applicable, certificate of change of name), articles of incorporation
or association, memorandum of association, charter, bylaws, partnership
agreement, trust agreement, joint venture agreement, limited liability
company operating or members agreement, joint venture agreement or one
or more similar agreements, instruments or documents constituting the
organization or formation of such Person.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"Convertible Preferred Stock" means the shares of Class B
Convertible Preferred Stock, par value $.01 per share, of the Borrower
(including shares issuable upon the exercise of warrants to purchase
Series B Convertible Preferred Stock).
"Convertible Preferred Stock Documents" means the Certificate
of Designations of Series B Convertible Preferred Stock of PHP
Healthcare Corporation dated December 23, 1997, the Preferred Stock
Investment Agreements and any other agreement, document or instrument
which governs the terms of the Convertible Preferred Stock.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person except Funded Debt that by its terms is payable on demand or
matures within one year after the date of determination (excluding any
Debt renewable or extendible, at the option of such Person, to a date
more than one year from such date or arising under a revolving credit
or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date) and (b)
all other items (including taxes accrued as estimated) that in
accordance with GAAP would be classified as current liabilities of such
Person.
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"Debt" of any Person means (a) all indebtedness of such Person
for borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
Obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations
of such Person as lessee under Capitalized Leases, (f) all Obligations,
contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in
respect of any capital stock of or other ownership or profit interest
in such Person or any other Person or any warrants, rights or options
to acquire such capital stock, valued, in the case of Redeemable
Preferred Stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h) all
Obligations of such Person in respect of Hedge Agreements, (i) all Debt
of others referred to in clauses (a) through (h) above or clause (j)
below guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through
an agreement (i) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (ii) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(iv) otherwise to assure a creditor against loss, and (j) all Debt
referred to in clauses (a) through (i) above of another Person secured
by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time which has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(d) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid
as of such time, including, without limitation, any amount required to
be paid by such Lender Party to (a) the Issuing Bank pursuant to
Section 2.03(b) to purchase a portion of a Letter of Credit Advance
made by the Issuing Bank, (b) the Administrative Agent pursuant to
Section 2.02(d) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of such
Lender Party, (c) any other Lender Party pursuant to Section 2.13 to
purchase any participation in Advances owing to such other Lender Party
and (d) the Administrative Agent or the Issuing Bank pursuant to
Section 7.05 to reimburse the Administrative Agent or the Issuing Bank
for such Lender Party's ratable share of any amount required to be paid
by the Lender Parties to the Administrative Agent or the Issuing Bank
as provided therein. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to
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Section 2.15(b), the remaining portion of such Defaulted Amount shall
be considered a Defaulted Amount originally required to be paid
hereunder or under any other Loan Document on the same date as the
Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section
3.01(e).
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss) plus (b) interest
expense plus (c) income tax expense plus (d) depreciation expense plus
(e) amortization expense plus (f) accretion related to the Convertible
Preferred Stock, in each case of the Borrower and its Subsidiaries,
determined in accordance with GAAP for such period, and excluding from
net income (or net loss) any extraordinary items (determined in
accordance with GAAP) for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$500,000,000; (d) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $500,000,000; (e) a commercial
bank organized under the laws of any other country that is a member of
the OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having
total assets in excess of $500,000,000, so long as such bank is acting
through a branch or agency located in the United States; (f) the
central bank of any country that is a member of the OECD; (g) a finance
company, insurance company or other financial institution or fund
(whether a corporation, partnership, trust or other entity) that is
engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets in
excess of $500,000,000; and (h) any other Person approved by the
Administrative Agent such approval not to be unreasonably withheld or
delayed and; provided, however, that neither the Borrower nor any
Affiliate of the Borrower shall qualify as an Eligible Assignee under
this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule,
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regulation, code, order, writ, judgment, injunction, decree or
judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period in an amount substantially equal to NationsBank's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period (or, if NationsBank shall not
have such a Eurodollar Rate
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Advance, $1,000,000) and for a period equal to such Interest Period
(provided that if for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) 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) by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period, an amount equal to
(i) Consolidated net income (or loss) of the Borrower and its
Subsidiaries for such period plus (ii) the aggregate amount of all
non-cash charges deducted in arriving at such Consolidated net income
(or loss) plus (iii) if there was a net increase in Consolidated
Current Liabilities of the Borrower and its Subsidiaries during such
period, the amount of such net increase plus (iv) if there was a net
decrease in Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Borrower and its Subsidiaries during such period,
the amount of such net decrease less (v) the aggregate amount of all
non-cash credits included in arriving at such Consolidated net income
(or loss) less (vi) if there was a net decrease in Consolidated Current
Liabilities of the Borrower and its Subsidiaries during such period
since the date of the initial Borrowing, the amount of such net
decrease less (vii) if there was a net increase in Consolidated Current
Assets (excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such period, the amount of such net increase less
(viii) the aggregate amount of cash Capital Expenditures (including any
payments made under Capital Leases) made by the Borrower and its
Subsidiaries during such period less (ix) the aggregate principal
amount of all Advances paid by the Borrower during such period (which
are accompanied, in the case of any repayment of the Revolving Credit
Advances, with a similar permanent reduction of the Revolving Credit
Commitments) less (x) the aggregate amount of payments made by the
Borrower in respect of the repurchase of shares of capital stock of the
Borrower, provided that the aggregate amount of all payments deducted
from Excess Cash Flow pursuant to this clause (x) shall not exceed $65
million.
"Existing Credit Agreement" has the meaning specified in
Preliminary Statement 1 hereof.
"Existing Debt" has the meaning specified in Section 4.01(gg)
hereof.
"Extraordinary Receipt" means any cash received by or paid to
or for the account of any Person
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not in the ordinary course of business to the extent that such
receipts or payments are not taken into account in calculating Excess
Cash Flow for the related period, including, without limitation, any
payments made in respect of past due claims which are owing from the
District of Columbia in respect of the contract periods from 1991 to
1994 and from 1994 to 1996, pension plan reversions, proceeds of
insurance (other than (x) proceeds of business interruption insurance
to the extent such proceeds constitute compensation for lost earnings
and (y) proceeds from stop loss reinsurance), condemnation awards (and
payments in lieu thereof) and indemnity payments.
"Facility" means the Tranche A Revolving Credit Facility, the
Tranche B Revolving Credit Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on April 30 in any calendar year.
"Founders" means Xxxx X. Xxxxx and his "affiliates" and
"associates" (within the meanings ascribed to such terms in Rule 12b-2
of the Securities and Exchange Commission under the Securities Exchange
Act of 1934).
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year after such date, including,
without limitation, all amounts of Funded Debt of such Person required
to be paid or prepaid within one year after the date of its creation.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information" means the Information and Projections as defined
in the Senior Bank Facilities Commitment Letter dated as of May 5, 1998
between the Borrower, NationsBank and NMS.
10
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Bank" has the meaning specified in the
recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Alternate Base Rate Advance into such Eurodollar Rate Advance, and
ending on the last day of the period selected by the Borrower pursuant
to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two or three months (or such other period as each
Lender and the Borrower may agree), as the Borrower may, upon notice
received by the Administrative Agent not later than 10:00 A.M.
(Charlotte, North Carolina time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Alternate Base Rate Advances
and of Eurodollar Rate Advances having Interest Periods that
end on or prior to such principal repayment installment date
for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such
Person or any other investment in such
11
Person, including, without limitation, any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (i)
or (j) of the definition of "Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment has been
assigned pursuant to Section 8.07.
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(c)(ii)(A).
"Lender Party" means the Administrative Agent, any Lender or
the Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section
2.01(c).
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Tranche A Revolving Credit Lender pursuant to
Section 2.03(b).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank on the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit Commitment
at such time, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Leverage Ratio" means, for any fiscal quarter of the
Borrower, a ratio of Funded Debt as at the end of such fiscal quarter
to Consolidated EBITDA for the most recently completed four fiscal
quarters of the Borrower and its Subsidiaries; provided, however, that
for the fiscal quarter ending on July 31, 1998, Consolidated EBITDA for
the fiscal quarter then ended shall be the actual Consolidated EBITDA
for the period since November 1, 1997 multiplied by a fraction the
numerator of which is four and the denominator of which is the number
of fiscal quarters that have elapsed since November 1, 1997.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Subsidiary Guaranty
and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii)
the Subsidiary Guaranty, (iv) the Collateral Documents and (v) each
Letter of Credit Agreement, and (b) for purposes of the Subsidiary
Guaranty and the Collateral Documents, (i) this Agreement, (ii) the
Notes, (iii) the Subsidiary Guaranty, (iv) the Collateral Documents,
and (v) each Letter of Credit Agreement and in each case as amended or
otherwise modified from time to time.
12
"Loan Parties" means the Borrower and each Subsidiary
Guarantor.
"Lockbox Account" has the meaning specified in the Security
Agreement.
"Lockbox Bank" has the meaning specified in the Security
Agreement.
"Lockbox Letter" has the meaning specified in the Security
Agreement.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means, with respect to any Person or
group of Persons, any material adverse change in the business,
condition (financial or otherwise), operations, performance, properties
or prospects of such Person or group of Persons.
"Material Adverse Effect" means, with respect to any Person or
group of Persons, a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance, properties
or prospects of such Person or group of Persons, (b) the rights and
remedies of such Person or group of Persons under any Loan Document or
(c) the ability of such Person or group of Persons to perform its
Obligations under any Loan Document to which it is or is to be a party.
"Material Contract" means, with respect to any Loan Party,
each contract to which such Person is a party involving aggregate
consideration payable to or by such Person of $10,000,000 or more in
any year or otherwise material to the business, condition (financial or
otherwise), operations, performance, properties or prospects of such
Loan Party.
"Material Subsidiary" means all domestic wholly-owned
Subsidiaries of the Borrower other than any such Subsidiary which does
not account for 5% of the Borrower's Consolidated total assets or gross
revenues, provided that all such excluded Subsidiaries do not, in the
aggregate, account for 10% of the Borrower's Consolidated total assets
or gross revenues.
"Mortgage" has the meaning specified in Section 5.01(q)(iii).
"Mortgage Policy" has the meaning specified in Section
5.01(q)(iii).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any Person, or any Extraordinary Receipt received by or
paid to or for the account of any Person, the
13
aggregate amount of cash received from time to time (whether as
initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions and (b) the amount of taxes payable in connection with or
as a result of such transaction and (c) the amount of any Debt secured
by a Lien on such asset that, by the terms of the agreement or
instrument governing such Debt, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash,
actually paid or are accrued and owing to a Person that is not an
Affiliate of such Person or any Loan Party or any Affiliate of any
Loan Party and are properly attributable to such transaction or to the
asset that is the subject thereof.
"Nonratable Assignment" means an assignment by a Lender Party
pursuant to Section 8.07(a) of a portion of its rights and obligations
under this Agreement, other than an assignment of a uniform, and not a
varying, percentage of all of the rights and obligations of such Lender
Party under and in respect of all of the Facilities (other than the
Letter of Credit Facility).
"Note" means a Tranche A Revolving Credit Note or a Tranche B
Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(c).
"Notice of Termination" has the meaning specified in Section
2.01(c).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.01(aa).
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Encumbrances" has the meaning specified in the
Mortgages.
14
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies not yet due and payable; (b) Liens
imposed by law, such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising in the ordinary
course of business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or
to secure public or statutory obligations; and (d) easements, rights of
way and other encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Preferred Stock Investment Agreements" means the Preferred
Stock Investment Agreements, dated as of December 23, 1997, entered
into between the Borrower and each of the holders of the Convertible
Preferred Stock.
"Pro Rata Share" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's Tranche
A Revolving Credit Commitment at such time and the denominator of which
is the Tranche A Revolving Credit Facility at such time.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders owed or holding
more than 50% of the sum of (a) the aggregate principal amount of the
Advances outstanding at such time, (b) the aggregate Available Amount
of all Letters of Credit outstanding at such time, (c) the aggregate
unused Commitments under the Term Facility at such time and (d) the
aggregate Unused Revolving Credit Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at
such time (A) the aggregate principal amount of the Advances owing to
such Lender (in its capacity as a Lender) and outstanding at such time,
(B) such Lender's Pro Rata Share of the aggregate Available Amount of
all Letters of Credit issued by such Lender and outstanding at such
time, (C) the aggregate unused Term Commitment of such Lender at such
15
time and (D) the Unused Revolving Credit Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal
amount of Letter of Credit Advances owing to the Issuing Bank and the
Available Amount of each Letter of Credit shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their
respective Revolving Credit Commitments.
"Requirements of Law" means, with respect to any Person, all
laws, constitutions, statutes, treaties, ordinances, rules and
regulations, all orders, writs, decrees, injunctions, judgments,
determinations or awards of an arbitrator, a court or any other
governmental authority, and all governmental authorizations, binding
upon or applicable to such Person or to any of its properties, assets
or businesses.
"Responsible Officer" means any officer of any Loan Party or
any of its Subsidiaries.
"Security Agreement" has the meaning specified in Section
3.01(k)(viii).
"Senior Debt" means all Debt of the Borrower and its
Subsidiaries other than Subordinated Debentures.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
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.
"Subordinated Debentures" means the 6-1/2% Convertible
Subordinated Debentures due 2002 of the Borrower in an aggregate
principal amount of $69,000,000.
"Subordinated Debenture Documents" means the Indenture dated
December 15, 1995 between the Borrower and IBJ Xxxxxxxx Bank & Trust
Company and all other agreements, indentures and instruments pursuant
to which the Subordinated Debentures were issued.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or
16
more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Subsidiary Guarantors" means, all existing and hereafter
acquired direct or indirect domestic Material Subsidiaries of the
Borrower which are permitted by law to guarantee Debt; provided that in
the case of D.C. Chartered Health Plan, Inc. and Virginia Chartered
Health Plan, Inc., such Subsidiaries shall not be Subsidiary Guarantors
unless, in each case, prior regulatory approval has been obtained.
"Subsidiary Guaranty" has the meaning set forth in Section
3.01(k)(ix).
"Surviving Debt" has the meaning specified in Section 3.01(d).
"Tax Certificate" has the meaning specified in Section
5.03(o).
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earlier of May 26, 2001 and the
date of termination in whole of the Tranche A Revolving Credit
Commitments, the Tranche B Revolving Credit Commitments and the Letter
of Credit Commitments pursuant to Section 2.05 or 6.01.
"Tranche A Letter of Credit Agreement" has the meaning
specified in Section 2.03(a).
"Tranche A Reduction Amount" has the meaning specified in
Section 2.06(b)(v).
"Tranche A Revolving Credit Advance" has the meaning specified
in Section 2.01(a).
"Tranche A Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Tranche A Revolving Credit Advances of the
same Type made by the Tranche A Revolving Credit Lenders.
"Tranche A Revolving Credit Commitment" means, with respect to
any Tranche A Revolving Credit Lender at any time, the amount set forth
opposite such Lender's name on Schedule I hereto under the caption
"Tranche A Revolving Credit Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Tranche A Revolving Credit
Commitment," as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Tranche A Revolving Credit Facility" means, at any time, the
aggregate amount of the Tranche A Revolving Credit Lenders' Tranche A
Revolving Credit Commitments.
"Tranche A Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Tranche A Revolving Credit
Lender, in substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from
the Tranche A Revolving Credit Advances made by such Lender.
"Tranche A Revolving Credit Lender" means any Lender that has
a Tranche A Revolving Credit Commitment.
"Tranche B Reduction Amount" has the meaning specified in
Section 2.06(b)(vi).
"Tranche B Revolving Credit Advance" has the meaning specified
in Section 2.01(b) .
17
"Tranche B Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Tranche B Revolving Credit Advances of the
same Type made by the Tranche B Revolving Credit Lenders.
"Tranche B Revolving Credit Commitment" means, with respect to
any Tranche B Revolving Credit Lender at any time, the amount set forth
opposite such Lender's name on Schedule I hereto under the caption
"Tranche B Revolving Credit Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Tranche B Revolving Credit
Commitment", as such accounting may be reduced at or prior to such time
pursuant to Section 2.05.
"Tranche B Revolving Credit Facility" means, at any time, the
aggregate amount of the Tranche B Revolving Credit Lenders' Tranche B
Revolving Credit Commitments.
"Tranche B Revolving Credit Lender" means any Lender that has
a Tranche B Revolving Credit Commitment.
"Tranche B Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Tranche B Revolving Credit
Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from
the Tranche B Revolving Credit Advances made by such Lender.
"Tranche B Quarterly Repayment Amount" means an amount equal
to 1/9 of the Tranche B Term Out Amount.
"Tranche B Term Out Amount" means the aggregate amount of
Tranche B Revolving Credit Advances outstanding on January 31, 1999
(after giving effect to any prepayment of the Tranche B Advances on
such date and any Tranche B Borrowing on such date), as such aggregate
amount may be reduced pursuant to the provisions of Section 2.04(b).
"Type" refers to the distinction between Advances bearing
interest at the Alternate Base Rate and Advances bearing interest at
the Eurodollar Rate.
"Unused Tranche A Revolving Credit Commitment" means, with
respect to any Tranche A Revolving Credit Lender at any time, (a) such
Lender's Tranche A Revolving Credit Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all Tranche A
Revolving Credit Advances and Letter of Credit Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender's Pro Rata Share of (A) the aggregate Available Amount
of all Letters of Credit outstanding at such time and (B) the aggregate
principal amount of all Letter of Credit Advances made by the Issuing
Bank pursuant to Section 2.03(b) and outstanding of such time.
"Unused Tranche B Revolving Credit Commitment" means, with
respect to any Tranche B Revolving Credit Lender at any time, (a) such
Lender's Tranche B Revolving Credit Commitment at such time minus (b)
the aggregate principal amount of all Tranche B Revolving Credit
Advances made by such Lender and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other 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 if the right so to vote
18
has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Tranche A Revolving Credit
Advances. Each Tranche A Revolving Credit Lender severally agrees, on the terms
and conditions hereinafter set forth, to make advances (each a "Tranche A
Revolving Credit Advance") to the Borrower from time to time on any Business Day
during the period from the date hereof until the Termination Date in an amount
for each such Advance not to exceed such Lender's Unused Tranche A Revolving
Credit Commitment at such time. Each Tranche A Revolving Credit Borrowing shall
be in an aggregate amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof (other than a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Letter of Credit Advances) and
shall consist of Tranche A Revolving Credit Advances made simultaneously by the
Tranche A Revolving Credit Lenders ratably according to their Tranche A
Revolving Credit Commitments. Within the limits of each Tranche A Lender's
Unused Tranche A Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.06
and reborrow under this Section 2.01(a).
(b) The Tranche B Revolving Credit Advances. Each Tranche B
Revolving Credit Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "Tranche B Revolving Credit
Advance") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date in an amount for each
such Advance not to exceed such Lender's Unused Tranche B Revolving Credit
Commitment at such time. Each Tranche B Revolving Credit Borrowing shall be in
an aggregate amount of $1,000,000 or an integral multiple of $100,000 in excess
thereof and shall consist of Tranche B Revolving Credit Advances made
simultaneously by the Tranche B Revolving Credit Lenders ratably according to
their Tranche B Revolving Credit Commitments. Within the limits of each Tranche
B Revolving Credit Lender's Unused Tranche B Revolving Credit Commitment in
effect from time to time, the Borrower may borrow under this Section 2.01(b),
prepay pursuant to Section 2.06 and reborrow under this Section 2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue standby letters of credit (the
"Letters of Credit") for the account of the Borrower from time to time on any
Business Day during the period from the date hereof until 45 days before the
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
issued by the Issuing Bank not to exceed at any time the Issuing Bank's Letter
of Credit Commitment at such time and (ii) in an Available Amount for each such
Letter of
19
Credit not to exceed the lesser of (x) the Letter of Credit Facility at such
time and (y) the Unused Tranche A Revolving Credit Commitments of the Tranche A
Revolving Credit Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than the earlier of 45 days before the Termination Date
and one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a "Notice of Renewal") given to the Issuing
Banks and the Administrative Agent on or prior to any date for notice of renewal
set forth in such Letter of Credit but in any event at least three Business Days
prior to the date of the proposed renewal of such Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless the
Issuing Bank has notified the Borrower (with a copy to the Administrative Agent)
on or prior to the date for notice of termination set forth in such Letter of
Credit but in any event at least 30 Business Days prior to the date of automatic
renewal of its election not to renew such Letter of Credit (a "Notice of
Termination"); provided that the terms of each Letter of Credit that is
automatically renewable annually shall (x) require the Issuing Bank to give the
beneficiary named in such Letter of Credit notice of any Notice of Termination,
(y) permit such beneficiary, upon receipt of such notice, to draw under such
Letter of Credit prior to the date such Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Letter of Credit in any event to be extended to a
date later than 45 days before the Termination Date. If either a Notice of
Renewal is not given by the Borrower or a Notice of Termination is given by the
Issuing Bank pursuant to the immediately preceding sentence, such Letter of
Credit shall expire on the date on which it otherwise would have been
automatically renewed; provided, however, that even in the absence of receipt of
a Notice of Renewal the Issuing Bank may in its discretion, unless instructed to
the contrary by the Administrative Agent or the Borrower, deem that a Notice of
Renewal had been timely delivered and in such case, a Notice of Renewal shall be
deemed to have been so delivered for all purposes of this Agreement. Within the
limits of the Letter of Credit Facility, and subject to the limits referred to
above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(c), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 11:00 A.M. (Charlotte, North Carolina time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or on the date of the proposed
Borrowing in the case of a Borrowing consisting of Alternate Base Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each
Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 10:00 A.M.
(Charlotte, North Carolina time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing in accordance with the respective Commitments under
the applicable Facility of such Lender and the other Appropriate Lenders. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account;
provided, however, that, in the case of any Tranche A Revolving Credit
Borrowing, the Administrative Agent shall first make a portion of such funds
equal to the aggregate principal amount of any Letter of Credit Advances made by
the Issuing Bank and by any other Tranche A Revolving Credit Lender and
outstanding on the date of such Tranche A Revolving Credit Borrowing, plus
interest accrued and unpaid thereon to and as of such date, available to the
Issuing Bank and such other Tranche A Revolving Credit Lenders for repayment of
such Letter of Credit Advances.
20
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $1,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10 and (ii) the Tranche A Revolving Credit Advances
may not be outstanding as part of more than ten separate Borrowings and the
Tranche B Revolving Credit Advances made on any date may not be outstanding as
part of more than ten separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Appropriate Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (Charlotte, North Carolina
time) on the fifth Business Day prior to the date of the proposed issuance of
such Letter of Credit, by the Borrower to the Issuing Bank, which shall give to
the Administrative Agent and each Revolving Credit Lender prompt notice thereof
by telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letters of credit
as the Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to the Issuing Bank in its
sole discretion and (y) it has not received notice of objection to such issuance
21
from Lenders holding more than 50% of the Tranche A Revolving Credit
Commitments, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to
the Borrower at its office referred to in Section 8.02 or as otherwise agreed
with the Borrower in connection with such issuance. In the event and to the
extent that the provisions of any Letter of Credit Agreement shall conflict
with this Agreement, the provisions of this Agreement shall govern.
(b) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Alternate Base Rate Advance, in the amount of such draft. Upon
written demand by the Issuing Bank with an outstanding Letter of Credit Advance,
with a copy of such demand to the Administrative Agent, each Revolving Credit
Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell and
assign to each such Revolving Credit Lender, such Lender's Pro Rata Share of
such outstanding Letter of Credit Advance as of the date of such purchase, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to the Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i)
the Business Day on which demand therefor is made by the Issuing Bank provided
notice of such demand is given not later than 10:00 A.M. (Charlotte, North
Carolina time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Revolving Credit Lender of
a portion of a Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal and beneficial
owner of such interest being assigned by it, free and clear of any liens, but
makes no other representation or warranty and assumes no responsibility with
respect to such Letter of Credit Advance, the Loan Documents or any Loan Party.
If and to the extent that any Revolving Credit Lender shall not have so made the
amount of such Letter of Credit Advance available to the Administrative Agent,
such Revolving Credit Lender agrees to pay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from the date
of demand by the Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account or the account
of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by the Issuing Bank shall be reduced by such amount on such
Business Day.
(c) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(b) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Tranche A Revolving
Credit Advances. The Borrower shall repay to the Administrative Agent for the
ratable account of the Tranche A Revolving Credit Lenders on the Termination
Date the aggregate outstanding principal amount of the Tranche A Revolving
Credit Advances then outstanding.
(b) Tranche B Revolving Credit Advances. The Borrower shall
pay to the Administrative Agent for the ratable account of the Tranche B
Revolving Credit Lenders the aggregate outstanding principal amounts of the
Tranche B Revolving Credit Advances on the following dates in an amount equal to
the Tranche B Quarterly Repayment Amount (which amounts shall be reduced as a
result of the application of prepayments in
22
accordance with the order of priority set forth in Section 2.06):
Date
----
April 30, 1999
July 31, 1999
October 31, 1999
January 31, 2000
April 30, 2000
July 31, 2000
October 31, 2000
January 31, 2001
April 30, 2001
(c) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and each other
Tranche A Revolving Credit Lender that has made a Letter of Credit Advance on
the earlier of demand and the Termination Date the outstanding principal amount
of each Letter of Credit Advance made by each of them.
(ii)The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any
such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by the Issuing Bank of any draft or
the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
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;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit, provided that such
noncompliance is not material;
23
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty or any other guarantee, for all
or any of the Obligations of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments.(a)
Optional. The Borrower may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the Unused Tranche A
Revolving Credit Commitments and the Tranche B Revolving Credit Commitments;
provided, however, that each partial reduction of a Facility (i) shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Appropriate Lenders in
accordance with their Commitments with respect to such Facility.
(b) Mandatory. (i) The Tranche B Revolving Credit Facility
shall be automatically and permanently reduced, on a pro rata basis, on January
31, 1999, by an amount equal to the Tranche B Term Out Amount (after giving
effect to all reductions in accordance with subsection (a) of this Section
2.05); provided, however, that, notwithstanding the foregoing provisions of this
clause (i), the Commitments of the Tranche B Revolving Credit Lenders shall be
terminated in whole on the Termination Date.
(ii)The Letter of Credit Facility shall be permanently reduced
from time to time on the date of each reduction in the Tranche A
Revolving Credit Facility by the amount, if any, by which the amount of
the Letter of Credit Facility exceeds the Tranche A Revolving Credit
Facility after giving effect to such reduction of the Tranche A
Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon same day notice in the case of Alternate Base Rate Advances and three
Business Days' notice in the case of Eurodollar Rate Advances, in each case to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding aggregate principal amount of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with (i) accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on
a date other than the last day of an Interest Period for such Advance the
Borrower shall also pay any amounts owing pursuant to Section 8.04(c).
(b) Mandatory. (i) The Borrower shall, on the 45th day
following the end of each of the first three fiscal quarters of each fiscal year
of the Borrower and on the 90th day following the end of the fourth fiscal
quarter of each fiscal year of the Borrower, commencing with the fiscal quarter
ended July 31, 1998, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to seventy-five per cent (75%) of
the amount of Excess Cash Flow for such fiscal quarter. Each such prepayment
shall be applied ratably first (on and after January 31, 1999) to the Tranche B
Term Out Amount and to the installments thereof pro rata, second to the Tranche
B Revolving Credit Facility, and third, to the Tranche A Revolving Credit
Facility as set forth in clause (v) below.
(ii) The Borrower shall, on the date of receipt of the Net
Cash Proceeds by the Borrower
24
or any of its Subsidiaries from (A) the sale, lease, transfer or other
disposition of any assets of the Borrower or any of its Subsidiaries
(other than any sale, lease, transfer or other disposition of assets
pursuant to clause (i) of Section 5.02(e)), (B) the incurrence or
issuance by the Borrower or any of its Subsidiaries of any Debt (other
than Debt incurred or issued pursuant to Section 5.02(b)), (C) the
sale or issuance by the Borrower or any of its Subsidiaries of any
capital stock or other ownership or profit interest, any securities
convertible into or exchangeable for capital stock or other ownership
or profit interest or any warrants, rights or options to acquire
capital stock or other ownership or profit interest (other than in
respect of stock options or warrants currently outstanding or
hereafter issued pursuant to any stock option, plan or other
compensation arrangement approved by the Borrower's Board of
Directors) and (D) any Extraordinary Receipt received by or paid to or
for the account of the Borrower or any of its Subsidiaries and not
otherwise included in clause (A), (B) or (C) above, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings equal to (x) in the case of clauses (A) and (D), 75% of the
amount of such Net Cash Proceeds and (y) in the case of clauses (B)
and (C), 100% of the amount of such Net Cash Proceeds. Each such
prepayment shall be applied first (on and after January 31, 1999) to
the Tranche B Term Out Amount and to the installments thereof pro
rata, second to the Tranche B Revolving Credit Facility, and third to
the Tranche A Revolving Credit Facility as set forth in clause (v)
below.
(iii) The Borrower shall (A) on each Business Day, prepay an
aggregate principal amount of the Tranche A Revolving Credit Advances
comprising part of the same Borrowings and the Letter of Credit
Advances equal to the amount by which (1) the sum of the aggregate
principal amount of (x) the Tranche A Revolving Credit Advances and (y)
the Letter of Credit Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding exceeds (2)
the Tranche A Revolving Credit Facility on such Business Day and (B) on
each Business Day, prepay an aggregate principal amount of the Tranche
B Revolving Credit Advances comprising part of the same Borrowings
equal to the amount by which (1) the Tranche B Revolving Credit
Advances then outstanding exceeds (2) the sum of the Tranche B
Revolving Credit Facility on such Business Day plus on and after
January 31, 1999, the Tranche B Term Out Amount outstanding on such
Business Day.
(iv) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an
amount sufficient to cause the aggregate amount on deposit in such
Account to equal the amount by which the aggregate Available Amount of
all Letters of Credit then outstanding exceeds the Letter of Credit
Facility on such Business Day.
(v) Prepayments of the Tranche A Revolving Credit Facility
made pursuant to clause (i), (ii) or (iii) above shall be first applied
to prepay Letter of Credit Advances then outstanding until such
Advances are paid in full, and second applied to prepay Tranche A
Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full.
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the
principal amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Alternate Base Rate Advances. During such periods as such
Advance is a Alternate Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Alternate Base Rate in effect from time to
time plus (B) the Applicable Margin in effect from time to time,
payable in arrears quarterly on the last day of each fiscal quarter
during such periods and on the date such Alternate Base Rate Advance
shall be Converted or paid in full;
25
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full;
provided, however, that, except as otherwise provided in Section 2.07(b), in no
event shall the rate of interest payable on any Advance exceed 17% per annum at
any time.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above, and, in all other cases, on Alternate Base
Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (ii).
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of the Lenders a commitment fee,
from the date of the side letter referred to in Section 3.01(i) in the case of
each Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date, payable in arrears on the date of the initial
Borrowing hereunder, thereafter quarterly on the last Business Day of each
fiscal quarter, commencing July 31, 1998, and on the Termination Date, at a rate
equal to the Applicable Percentage on the average daily Unused Revolving Credit
Commitment of such Lender; provided, however, that any commitment fee accrued
with respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such time
shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrower prior to such time; and provided
further that no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Tranche A Revolving Credit
Lender a commission, payable in arrears quarterly on the last Business Day of
each fiscal quarter, commencing July 31, 1998, and on the earliest to occur of
the full drawing expiration, termination or cancellation of any such Letter of
Credit and on the Termination Date, on such Lender's Pro Rata Share of the
average daily aggregate Available Amount during such quarter of the sum of all
Letters of Credit then outstanding at a per annum rate equal to the Applicable
Margin for Eurodollar Advances in effect for such quarter.
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, (A) a fronting fee, payable in arrears quarterly on the last
Business Day of each fiscal quarter, commencing July 31, 1998,
26
and on the Termination Date, on the average daily amount of its Letter
of Credit Commitment during such quarter, from the date hereof until
the Termination Date, at the rate of 0.125% per annum, and (B) such
other commissions, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit
as the Borrower and the Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (Charlotte, North Carolina time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions
of Sections 2.07 and 2.10, Convert all or any portion of the Advances of one
Type comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Alternate Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Alternate Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b), no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.02(b) and each Conversion of
Advances comprising part of the same Borrowing under any Facility shall be made
ratably among the Appropriate Lenders in accordance with their Commitments under
such Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Alternate Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section
1.01, the Administrative Agent will forthwith so notify the Borrower
and the Appropriate Lenders, whereupon each such Eurodollar Rate
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Alternate Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Alternate Base Rate Advance and (y) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining Letters of Credit or of agreeing to make or
of making or maintaining Letter of Credit Advances (excluding for purposes of
this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender Party
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender
27
Party additional amounts sufficient to compensate such Lender Party for such
increased cost. A certificate as to the amount of such increased cost, submitted
to the Borrower by such Lender Party, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue Letters of Credit hereunder and
other commitments of such type or the issuance or maintenance of the Letters of
Credit (or similar contingent obligations), then, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender Party, from
time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder or to the issuance or maintenance of any Letters of
Credit. A certificate as to such amounts submitted to the Borrower by such
Lender Party shall be conclusive and binding for all purposes, absent manifest
error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Alternate Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Alternate Base Rate Advance and (ii) the obligation of
the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 12:00 Noon (Charlotte, North Carolina time) on the day when due in
U.S. dollars to the Administrative Agent at the Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable hereunder and
under the Notes to more than one Lender Party, to such Lender Parties for the
account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by the Borrower is in respect of any Obligation
then payable hereunder to one Lender Party, to such Lender Party for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained
28
therein in the Register pursuant to Section 8.07(d), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrower hereby authorizes each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with such Lender
Party any amount so due. Each Lender Party agrees promptly to notify the
Borrower after any such charge; provided, however, that the failure to give such
notice shall not affect the validity of such charge.
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for 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 Party and the
Administrative Agent, taxes that are imposed on its overall net income by the
United States and taxes that are imposed on its overall net income (and
franchise taxes
29
imposed in lieu thereof) by the state or foreign jurisdiction under the laws of
which such Lender Party or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender
Party, taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) that are imposed on such Lender Party by the state or
foreign jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender Party or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender Party or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or the Administrative Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by the
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224. If the forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender Party provides the appropriate form certifying that
a lesser rate applies, whereupon withholding tax at such lesser rate only shall
be considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender Party becomes a party to this Agreement, the Lender Party assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding
30
taxes that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or 4224, that the Lender Party reasonably
considers to be confidential, the Lender Party shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in subsection
(e) above (other than if such failure is due to a change in law occurring after
the date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Lender Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes
at such time in excess of its ratable share (according to the proportion of (i)
the amount of such Obligations due and payable to such Lender Party at such time
to (ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Notes at such time) of payments on account of
the Obligations due and payable to all Lender Parties hereunder and under the
Notes at such time obtained by all the Lender Parties at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender Party
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to such
Lender Party at such time to (ii) the aggregate amount of the Obligations owing
(but not due and payable) to all Lender Parties hereunder and under the Notes at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such participations in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender Party, such purchase
from each other Lender Party shall be rescinded and such other Lender Party
shall repay to the purchasing Lender Party the purchase price to the extent of
such Lender Party's ratable share (according to the proportion of (i) the
purchase price paid to such Lender Party to (ii) the aggregate purchase price
paid to all Lender Parties) of such recovery together with an amount equal to
such Lender Party's ratable share (according to the proportion of (i) the amount
of such other Lender Party's required repayment to (ii) the total amount so
recovered from the purchasing Lender Party) of any interest or other amount paid
or payable by the purchasing Lender Party in respect of the total amount so
recovered. The Borrower agrees that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section 2.13 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender Party were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.14. Use of Proceeds. The proceeds of Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds and Letters of Credit) solely to provide working
capital for the Borrower and its Subsidiaries, to repurchase capital stock, to
pay transaction fees and expenses and to finance other corporate purposes of the
Borrower and its Subsidiaries; provided, however, that no proceeds of the
Tranche A Revolving Credit Facility shall be used to repurchase any capital
stock of the Borrower.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender
31
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Advance to the Borrower and (iii) the Borrower shall be required to
make any payment hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower may, so long as no Default
shall occur or be continuing at such time and to the fullest extent permitted by
applicable law, set off and otherwise apply the Obligation of the Borrower to
make such payment to or for the account of such Defaulting Lender against the
obligation of such Defaulting Lender to make such Defaulted Advance. In the
event that, on any date, the Borrower shall so set off and otherwise apply its
obligation to make any such payment against the obligation of such Defaulting
Lender to make any such Defaulted Advance on or prior to such date, the amount
so set off and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on the date under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01. Such Advance shall be a Alternate Base Rate Advance and shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). The Borrower shall
notify the Administrative Agent at any time the Borrower exercises its right of
set-off pursuant to this subsection (a) and shall set forth in such notice (A)
the name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a). Any portion
of such payment otherwise required to be made by the Borrower to or for the
account of such Defaulting Lender which is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the Borrower pursuant to
this subsection (a), shall be applied by the Administrative Agent as specified
in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and (iii)
the Borrower shall make any payment hereunder or under any other Loan Document
to the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
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(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the
Administrative Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with NationsBank, in the
name and under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be NationsBank's standard terms applicable
to escrow accounts maintained with it. Any interest credited to such account
from time to time shall be held by the Administrative Agent in escrow under, and
applied by the Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Advances required to be
made by such Defaulting Lender and to pay any amount payable by such Defaulting
Lender hereunder and under the other Loan Documents to the Administrative Agent
or any other Lender Party, as and when such Advances or amounts are required to
be made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and amounts required to be made
or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date. Article
II hereof shall be effective on and as of the date (the "Effective Date"), on
which each of the following conditions precedent shall have been satisfied or
duly waived.
33
(a) The Lender Parties shall be satisfied with the corporate
and legal structure and capitalization of each Loan Party and each of
its Subsidiaries, including the terms and conditions of the
Constitutive Documents and each class of capital stock or other equity
interest of each Loan Party and each such Subsidiary and of each
agreement or instrument relating to such structure or capitalization.
(b) All of the governmental authorizations, and all of the
consents, approvals and authorizations of, and notices and filings to
or with, and other actions by, any other Person necessary in connection
with any of the Loan Documents or any of the other transactions
contemplated thereby, other than the governmental authorizations, and
the consents, approvals, authorizations, notices, filings and other
actions described on Schedule 4.01(d) hereto, shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Lender Parties) and shall remain in full force and
effect; and all applicable waiting periods shall have expired without
any action being taken by any competent authority.
(c) The Lender Parties shall be satisfied that all Existing
Debt other than the Debt identified on Schedule 4.01(ff) (the
"Surviving Debt") shall have been prepaid, redeemed or defeased in full
or otherwise satisfied and extinguished and that all such Surviving
Debt shall be on terms and conditions satisfactory to the Lender
Parties.
(d) There shall have occurred no Material Adverse Change in
(i) the Borrower, together with its Subsidiaries, taken as a whole,
since April 30, 1997, (ii) the Information provided to the Lender
Parties prior to the Closing Date, or (iii) the financial markets,
which, in the judgment of the Lender Parties, would make it impractical
or inadvisable to proceed with the funding of the Facilities.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect with respect to any Loan Party or any Lender
Party other than the matters described on Schedule 3.01(e) (the
"Disclosed Litigation") or (ii) purports to affect the legality,
validity or enforceability of this Agreement, any Note, any other Loan
Document or the consummation of the transactions contemplated hereby.
(f) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent and the Lender Parties (including the
accrued fees and expenses of counsel to the Administrative Agent and
local counsel to the Lender Parties).
(g) All amounts under the Existing Credit Agreement shall have
been paid in full and all commitments thereunder shall have been
terminated.
(h) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the
Lenders.
(ii) Certified copies of the resolutions of the Board
of Directors (or persons performing similar functions) of the
Borrower and each other Loan Party approving this Agreement,
the Notes and each other Loan Document to which it is or is to
be a party, and of all documents evidencing other necessary
corporate (or the equivalent thereof) action and
34
governmental and other third party approvals and consents, if
any, with respect to this Agreement, the Notes and each other
Loan Document.
(iii) A copy of the Constitutive Documents of the
Borrower and each other Loan Party and each amendment thereto,
certified (as of a date reasonably near the date of the
Initial Extension of Credit) by the Secretary of State (or
similar governmental authority) of the jurisdiction of its
organization as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of
State (or similar governmental authority) of the jurisdiction
of its organization, dated reasonably near the date of the
Initial Extension of Credit, listing the charter (or similar
Constitutive Document) of the Borrower and each other Loan
Party and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to
the Borrower's, or such other Loan Party's charter (or similar
Constitutive Document) on file in his office, (B) the Borrower
and each other Loan Party have paid all franchise taxes (or
the equivalent thereof) to the date of such certificate and
(C) the Borrower, and each other Loan Party are duly organized
and in good standing under the laws of the State of the
jurisdiction of its organization.
(v) A copy of a certificate of the Secretary of State
(or the equivalent governmental authority) of each
jurisdiction in which any Loan Party is qualified or licensed
as a foreign corporation, partnership, limited liability
company or other Person, dated reasonably near the date of the
Initial Extension of Credit, stating that the Borrower and
each other Loan Party are duly qualified and in good standing
as a foreign corporation, partnership, limited liability
company or other Person in such State and have filed all
annual reports required to be filed to the date of such
certificate.
(vi) A certificate of the Borrower, and each other
Loan Party, signed on behalf of the Borrower and such other
Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary (or persons performing
similar functions), dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true
on and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to the
charter (or similar Constitutive Document) of the Borrower or
such other Loan Party since the date of the Secretary of
State's (or equivalent authority's) certificate referred to in
Section 3.01(k)(iv), (B) a true and correct copy of the bylaws
(or similar Constitutive Document) of the Borrower, and such
other Loan Party as in effect on the date of the Initial
Extension of Credit, (C) the due organization and good
standing of the Borrower and such other Loan Party as a Person
organized under the laws of the State of the jurisdiction of
its organization, and the absence of any proceeding for the
dissolution or liquidation of the Borrower or such other Loan
Party, (D) the truth of the representations and warranties
contained in the Loan Documents as though made on and as of
the date of the Initial Extension of Credit and (E) the
absence of any event occurring and continuing, or resulting
from the Initial Extension of Credit, that constitutes a
Default.
(vii) A certificate of the Secretary or an Assistant
Secretary (or persons performing similar functions) of the
Borrower, and each other Loan Party certifying the names and
true signatures of the officers of the Borrower and such other
Loan Party authorized to sign this Agreement, the Notes, each
other Loan Document and each Related Document to which they
are or are to be parties and the other documents to be
delivered hereunder and thereunder.
(viii) A security agreement in substantially the form
of Exhibit D (together with each
35
other security agreement delivered pursuant to Section
5.01(p), in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the
"Security Agreement"), duly executed by the Borrower and each
other Collateral Grantor, together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt referred to therein
indorsed in blank,
(B) proper financing statements, completed
in a manner satisfactory to the Lender Parties and
duly executed by the applicable Loan Party on or
before the day of the Initial Extension of Credit
under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interests created under the Security Agreement,
covering the Collateral described in the Security
Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all of the effective financing
statements filed in the jurisdictions referred to in
clause (B) above that name the Borrower or any other
Loan Party as debtor, together with copies of such
other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(E) evidence of the insurance required by
the terms of the Security Agreement,
(F) copies of the Assigned Agreements
referred to in the Security Agreement, together with
a consent to such assignment, in substantially the
form of Exhibit B to the Security Agreement, duly
executed by each party to such Assigned Agreements
other than the Borrower,
(G) evidence that all other action that the
Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the
Security Agreement has been taken.
(ix) A guaranty in substantially the form of Exhibit
E duly executed by each of the Subsidiary Guarantors (together
with each other guaranty of any such entity delivered pursuant
to Section 5.01(p), in each case as amended, supplemented or
otherwise modified from time to time in accordance with its
terms, the "Subsidiary Guaranty").
(x) Certificates, in the form attached hereto as
Exhibit F, attesting to the Solvency of each of the Borrower
and each Subsidiary Guarantor after giving effect to the
Transaction and the other transactions contemplated hereby,
from its chief financial officer.
(xi) Evidence of insurance naming the Administrative
Agent as insured and loss payee with such responsible and
reputable insurance companies or associations, and in such
amounts and covering such risks, as is satisfactory to the
Lender Parties.
36
(xii) Certified copies of all Material Contracts of
each Loan Party and its Subsidiaries.
(xiii) A favorable opinion of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, counsel for the Loan Parties, in
substantially the form of Exhibit G hereto and as to such
other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xiv) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Lender Parties.
(xv) A certificate of the chief financial officer of
the Borrower to the effect that Consolidated EBITDA of the
Borrower and its Subsidiaries for the 12-month period ended
April 30, 1998 is at least $29,700,000.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Tranche A Revolving
Credit Lender pursuant to Section 2.03(b)) on the occasion of each Borrowing
(including the Initial Extension of Credit), and the obligation of the Issuing
Bank to issue a Letter of Credit (including the initial issuance) or renew a
Letter of Credit, shall be subject to the further conditions precedent that on
the date of such Borrowing or issuance or renewal (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing,
Notice of Issuance or Notice of Renewal and the acceptance by the Borrower of
the proceeds of such Borrowing or of such Letter of Credit or the renewal of
such Letter of Credit shall constitute a representation and warranty by the
Borrower that both on the date of such notice and on the date of such Borrowing
or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal
and to the application of the proceeds therefrom, as though made on and
as of such date other than any such representations or warranties that,
by their terms, refer to a specific date other than the date of such
Borrowing or issuance or renewal, in which case as of such specific
date; and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
37
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation, a limited liability
company or a partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii)
is duly qualified and in good standing as a foreign corporation,
limited liability company or partnership in each other jurisdiction in
which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed would not be reasonably likely to
have a Material Adverse Effect with respect to any Loan Party or any
Lender Party and (iii) has all requisite power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted
except where the absence of such power or authority would not be
reasonably likely to have a Material Adverse Effect with respect to any
Loan Party or any Lender Party.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
organization, the number of shares of each class of capital stock or
other equity interest authorized, and the number outstanding, on the
date hereof and the percentage of the outstanding shares or other
equity interest of each such class owned (directly or indirectly) by
such Loan Party and the number of shares or other equity interest
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the outstanding
capital stock or other equity interest of all of such Subsidiaries has
been validly issued, is fully paid and non-assessable and is owned by
such Loan Party or one or more of its Subsidiaries free and clear of
all Liens, except those created under the Loan Documents or as
disclosed in such Schedule. Each such Subsidiary (i) is a corporation,
limited liability company or partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign
corporation, limited liability company or partnership in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed would not be reasonably
likely to have a Material Adverse Effect with respect to any Loan Party
or any Lender Party and (iii) has all requisite power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted
except where the absence of such power of authority would not be
reasonably likely to have a Material Adverse Effect with respect to any
Loan Party or any Lender Party.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes, each other Loan Document to which it is
or is to be a party, and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate (or
equivalent thereof) powers, have been duly authorized by all necessary
action, and do not (i) contravene such Loan Party's Constitutive
Documents, (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934 and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of
1970), rule, regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the
38
properties of any Loan Party or any of its Subsidiaries. No Loan Party
or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which could be reasonably likely to have a Material Adverse
Effect with respect to any Loan Party or any Lender Party.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes or any other Loan Document to which it is or is to
be a party, or for the consummation of the transactions contemplated
hereby, (ii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created by the Collateral Documents (including
the first priority nature thereof) or (iv) the exercise by the
Administrative Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals,
actions, notices and filings listed on Schedule 4.01(d), all of which
have been duly obtained, taken, given or made and are in full force and
effect. All applicable waiting periods in connection with the
transactions contemplated hereby have expired without any action having
been taken by any competent authority restraining, preventing or
imposing materially adverse conditions upon the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose
of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each of the Notes and each
other Loan Document when delivered hereunder will have been, duly
executed and delivered by each Loan Party thereto. This Agreement is,
and each of the Notes and each other Loan Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan
Party thereto, enforceable against such Loan Party in accordance with
its terms except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect that affect creditors' rights
generally, general principles of equity (including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness)
whether such principles are considered in a proceeding in equity or at
law, and the application of any fraudulent conveyance, fraudulent
transfer, fraudulent obligation, or preferential transfer law or any
law governing the distribution of assets of any Person.
(f) The Consolidated balance sheets of the Borrower and its
Subsidiaries as at April 30, 1997, and the related Consolidated
statements of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Coopers & Xxxxxxx L.L.P., independent
public accountants, and the Consolidated balance sheet of the Borrower
and its Subsidiaries as at January 31, 1998, and the related
Consolidated statement of income and Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the nine months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender Party, fairly
present, subject, in the case of said balance sheet as at January 31,
1998, and said statement of income and cash flows for the nine months
then ended, to year-end audit adjustments, the Consolidated financial
condition of the Borrower and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent
basis, and since April 30, 1997, there has been no Material Adverse
Change with respect to the Borrower and its Subsidiaries, taken as a
whole.
(g) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section 5.03
39
were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in the light of conditions
existing at the time of delivery of such forecasts, and represented, at
the time of delivery, the Borrower's best estimate of its future
financial performance.
(h) Neither the Information nor any other information, exhibit
or report furnished by any Loan Party to the Administrative Agent or
any Lender Party in connection with the negotiation of the Loan
Documents or pursuant to the terms of the Loan Documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(i) Except as set forth on Schedule 3.01(e), there is no
action, suit, investigation, litigation or proceeding affecting any
Loan Party or any of its Subsidiaries, including any Environmental
Action, pending or, to the best of any Loan Party's knowledge,
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect with
respect to any Loan Party or any Lender Party or (ii) purports to
affect the legality, validity or enforceability of this Agreement, any
Note or any other Loan Document or the consummation of the transactions
contemplated thereby.
(j) No proceeds of any Advance or drawings under any Letter of
Credit will be used to acquire any equity security of a class that is
registered pursuant to Section 12 of the Securities Exchange Act of
1934, other than equity securities issued by the Borrower.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock,
except for repurchases by the Borrower of its capital stock as
permitted under this Agreement.
(l) Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25% of the value of
the assets (either of the Borrower only or of the Borrower and its
Subsidiaries on a Consolidated basis) subject to the provisions of
Section 5.02(a) or 5.02(e) or subject to any restriction contained in
any agreement or instrument between the Borrower and any Lender Party
or any Affiliate of any Lender Party relating to Debt and within the
scope of Section 6.01(e) will be Margin Stock.
(m) Set forth on Schedule 4.01(m) hereto is a complete and
accurate list of all material Plans, Multiemployer Plans and Welfare
Plans.
(n) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted in or is reasonably
expected to result in a material liability of any Loan Party or any
ERISA Affiliate.
(o) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change
in the funding status of any such Plan since such date.
(p) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan.
(q) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a
40
Multiemployer Plan that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA.
(r) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.03, the Loan
Parties and their respective Subsidiaries have no material
liability with respect to "expected post retirement benefit
obligations" within the meaning of Statement of Financial
Accounting Standards No. 106.
(s) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could be reasonably
likely to have a Material Adverse Effect with respect to any Loan Party
or any Lender Party.
(t) The operations and properties of each Loan Party and each
of its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance
with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs, and no circumstances
exist that could be reasonably likely to (i) form the basis of an
Environmental Action against any Loan Party or any of its Subsidiaries
or any of their properties that is likely to have a Material Adverse
Effect with respect to any Loan Party or any Lender Party or (ii) cause
any such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law that is
likely to have a Material Adverse Effect with respect to any Loan Party
or any Lender Party.
(u) None of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there
are no and never have been any underground or aboveground storage tanks
or any surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or have been treated, stored or
disposed on any property currently owned or operated by any Loan Party
or any of its Subsidiaries or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of
its Subsidiaries; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries.
(v) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in material liability to any Loan Party or any of its
Subsidiaries.
(w) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate
restriction that could be reasonably likely to have a Material Adverse
Effect with respect to any Loan Party or any Lender Party.
41
(x) The Collateral Documents create a valid and perfected
first priority security interest in the Collateral, securing the
payment of the Secured Obligations (as defined therein), and all
filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken. The Loan Parties are the
legal and beneficial owners of the Collateral free and clear of any
Lien, except for the liens and security interests created or permitted
under the Loan Documents.
(y) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties.
(z) Set forth on Schedule 4.01(z) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan
Party and each of its Subsidiaries and Affiliates for which Federal
income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an "Open Year").
(aa) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries and Affiliates proposed by the Internal
Revenue Service with respect to Open Years does not exceed $500,000. No
issues have been raised by the Internal Revenue Service in respect of
Open Years that, in the aggregate, could be reasonably likely to have a
Material Adverse Effect with respect to any Loan Party or any Lender
Party.
(bb) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries and Affiliates proposed by all state, local
and foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns) does not exceed $250,000. No
issues have been raised by such taxing authorities that, in the
aggregate, could be reasonably likely to have a Material Adverse Effect
with respect to any Loan Party or any Lender Party.
(cc) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor
the application of the proceeds or repayment thereof by the Borrower,
nor the consummation of the other transactions contemplated hereby,
will violate any provision of such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.
(dd) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(ee) Set forth on Schedule 4.01(ee) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing
as of the date hereof the principal amount outstanding thereunder.
(ff) Set forth on Schedule 4.01(ff) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the
principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(gg) Set forth on Schedule 4.01(gg) hereto is a complete and
accurate list of all real property owned by any Loan Party or any of
its Subsidiaries, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, record owner and book and
estimated fair value thereof.
42
Each Loan Party or such Subsidiary has good, marketable and insurable
fee simple title to such real property, free and clear of all Liens,
other than Liens created or permitted by the Loan Documents.
(hh) Set forth on Schedule 4.01(hh) hereto is a complete and
accurate list of all leases of real property under which any Loan Party
or any of its Subsidiaries is the lessee, showing as of the date hereof
the street address, county or other relevant jurisdiction, state,
lessor, lessee, expiration date and annual rental cost thereof. Each
such lease is the legal, valid and binding obligation of the lessor
thereof, enforceable in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect that affect creditors' rights generally, general principles of
equity (including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness) whether such principles are
considered in a proceeding in equity or at law, and the application of
any fraudulent conveyance, fraudulent transfer, fraudulent obligation,
or preferential transfer law or any law governing the distribution of
assets of any Person.
(ii) Set forth on Schedule 4.01(ii) hereto is a complete and
accurate list of all Material Contracts of each Loan Party and its
Subsidiaries, showing as of the date hereof the parties, subject matter
and term thereof. Each such Material Contract has been duly authorized,
executed and delivered by all parties thereto, has not been amended or
otherwise modified (other than as specified on Schedule 4.01(ii)), is
in full force and effect and is binding upon and enforceable against
all parties thereto in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect that affect creditors' rights generally, general principles of
equity (including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness) whether such principles are
considered in a proceeding in equity or at law, and the application of
any fraudulent conveyance, fraudulent transfer, fraudulent obligation,
or preferential transfer law or any law governing the distribution of
assets of any Person; and there exists no material default under any
such Material Contract by any party thereto.
(jj) Set forth on Schedule 4.01(jj) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(kk) Set forth on Schedule 4.01(kk) hereto is a complete and
accurate list of all material patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses
thereof, of each Loan Party or any of its Subsidiaries, showing as of
the date hereof the jurisdiction in which registered, the registration
number, the date of registration and the expiration date.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced
and Corrupt Organizations
43
Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to undertake
any such cleanup, removal, remedial or other action to the extent that
its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of the
Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower,
and its Subsidiaries, taken as a whole, or the Lender Parties; provided
further that nothing in this Section 5.01(e) shall prevent the
consummation of any merger or consolidation permitted pursuant to
Section 5.02(d).
(f) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent or any of the Lender Parties or
any agents or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(g) Preparation of Environmental Reports. At the reasonable
request of the Administrative Agent from time to time, provide to the
Lender Parties within 60 days after such request, at the expense of the
Borrower, an environmental site assessment report for any of its or its
Subsidiaries' properties described in such request, prepared by an
environmental consulting firm acceptable to the Administrative
44
Agent, indicating the presence or absence of Hazardous Materials and
the estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without
limiting the generality of the foregoing, if the Administrative Agent
determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the
Administrative Agent may retain an environmental consulting firm to
prepare such report at the expense of the Borrower, and the Borrower
hereby grants and agrees to cause any Subsidiary that owns any property
described in such request to grant at the time of such request, to the
Administrative Agent, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject
to the rights of tenants, to enter onto their respective properties to
undertake such an assessment.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to maintain and preserve any such
property if the Board of Directors of the Borrower or such Subsidiary
shall determine that the maintenance and preservation thereof is no
longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower and its
Subsidiaries, taken as a whole, or the Lender Parties.
(j) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any default
by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so except, in any case, where the
failure to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect with respect to any
Loan Party or any Lender Party.
(k) Performance of Convertible Preferred Stock Documents and
Subordinated Debt Documents. Perform and observe all of the terms and
provisions of each Convertible Preferred Stock Document and each
Subordinated Debenture Document to be performed or observed by it,
maintain each such Convertible Preferred Stock Document and each such
Subordinated Debenture Document in full force and effect, enforce each
such Convertible Preferred Stock Document and each such Subordinated
Debenture Document in accordance with its terms, take all such action
to such end as may be from time to time requested by the Administrative
Agent and, upon request of the Administrative Agent, make to each other
party to each such Convertible Preferred Stock Document and each such
Subordinated Debenture Document such demands and requests for
information and reports or for action as the Borrower is entitled to
make under such Convertible Preferred Stock Document and such
Subordinated Debenture Document, as the case may be; provided, however,
that notwithstanding the foregoing provisions of this Section 5.01(k),
the Borrower shall not be obligated to pay the fee required to be paid
pursuant to the provisions of Section 1.4(b)(iv) of each of the
Preferred Stock Investment Agreements.
(l) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its
terms, take all such action to
45
such end as may be from time to time requested by the Administrative
Agent and, upon request of the Administrative Agent, make to each other
party to each such Material Contract such demands and requests for
information and reports or for action as the Borrower is entitled to
make under such Material Contract, and cause each of its Subsidiaries
to do so except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably likely to
have a Material Adverse Effect with respect to any Loan Party or any
Lender Party.
(m) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(n) Cash Concentration Accounts. Maintain and cause each
Collateral Grantor to maintain main cash concentration accounts with
NationsBank and, on and after November 15, 1997, maintain and cause
each Collateral Grantor to maintain Lockbox Accounts into which all
proceeds of Collateral are paid with NationsBank or one or more banks
acceptable to the Administrative Agent that have accepted the
assignment of such accounts to the Administrative Agent pursuant to the
terms of the Security Agreement.
(o) Termination of Financing Statements. Upon the request of
the Administrative Agent, and at the expense of the Borrower, within 10
days after such request, furnish to the Administrative Agent proper
termination statements on Form UCC-3 covering such financing statements
as the Administrative Agent may reasonably request.
(p) Covenant to Give Security. Upon the request of the
Administrative Agent following the occurrence and during the
continuance of a Default, and at the expense of the Borrower, (i)
within 10 days after such request, furnish to the Administrative Agent
a description of the real and personal properties of the Borrower and
the Subsidiary Guarantors in detail satisfactory to the Administrative
Agent, (ii) within 15 days after such request, duly execute and deliver
to the Administrative Agent mortgages, pledges, assignments and other
security agreements, as specified by and in form and substance
satisfactory to the Administrative Agent, securing payment of all the
Obligations of the Borrower under the Loan Documents and constituting
Liens on all such properties, (iii) within 30 days after such request,
take whatever action (including, without limitation, the recording of
mortgages, the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title
documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the
security agreements delivered pursuant to this Section 5.01(p),
enforceable against all third parties in accordance with their terms,
(iv) within 60 days after such request, deliver to the Administrative
Agent a signed copy of a favorable opinion of counsel for the Borrower,
addressed to and acceptable to the Administrative Agent, as to the
matters contained in clauses (i), (ii) and (iii) above, as to such
security agreements being legal, valid and binding obligations of the
Borrower and the Subsidiary Guarantors enforceable in accordance with
their terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect that affect creditors' rights
generally, general principles of equity (including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness)
whether such principles are considered in a proceeding in equity or at
law, and the application of any fraudulent conveyance, fraudulent,
transfer, fraudulent obligation or preferential transfer law or any law
governing the distribution of assets of any Person) and as to such
other matters as the Administrative Agent may reasonably request, (v)
as promptly as practicable after such request, deliver to the
Administrative Agent surveys meeting the criteria specified in Section
5.01(r)(iii) and
46
Mortgage Policies as to each parcel of real property subject to such
request and (vi) at any time and from time to time, promptly execute
and deliver any and all further instruments and documents and take all
such other action as the Administrative Agent may reasonably deem
desirable in obtaining the full benefits of, or in preserving the Liens
of, such security agreements.
(q) Further Assurances. Promptly upon the request of the
Administrative Agent, or any of the Lender Parties through the
Administrative Agent, at any time and from time to time, do, execute,
acknowledge, deliver, record, rerecord, file, refile, register and
reregister, and cause of each of its Subsidiaries promptly to do,
execute, acknowledge, deliver, rerecord, record, file, refile, register
and reregister, any and all further acts, conveyances, security
agreements, assignments, floating and fixed debentures, pledge
agreements, estoppel certificates, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, mortgages, deeds of trust, certificates, assurances and
other instruments as the Administration Agent, or any of the Lender
Parties through the Administrative Agent, may reasonably require from
time to time in order to (A) carry out more effectively the purposes of
this Agreement, the Notes or any of the other Loan Documents, (B)
subject any of the property, assets, rights or interests of the
Borrower or any of its domestic Subsidiaries included or intended to be
included in the Collateral to the Liens created or now or hereafter
intended to be created under any of the Collateral Documents, (C)
perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents or any of the Liens created or intended to be
created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Administrative
Agent and the Secured Parties the rights granted or now or hereafter
intended to be granted to the Administrative Agent and the Secured
Parties under any of the Loan Documents or under any of the other
instruments executed in connection with any of the Loan Documents to
which the Borrower or any of its domestic Subsidiaries is or is to be a
party.
(r) Material Subsidiary. Promptly upon a Subsidiary becoming a
Material Subsidiary (whether through a change in law, the receipt of
requisite regulatory approval or an increase in such Subsidiary's total
assets or gross revenues), such Subsidiary shall become an additional
grantor pursuant to the terms of the Security Agreement and shall
become a Subsidiary Guarantor pursuant to the terms of the Subsidiary
Guaranty.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement that
names the Borrower or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder
to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
excluding, however, from the operation of the foregoing restrictions
the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and
described on Schedule 5.02(a) hereto;
47
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its Subsidiaries
(other than D.C. Chartered Health Plan, Inc.) in the ordinary course of
business to secure the purchase price of such property or equipment or
to secure Debt incurred solely for the purpose of financing the
acquisition of any such property or equipment to be subject to such
Liens, or Liens existing on any such property or equipment at the time
of acquisition (other than any such Liens created in contemplation of
such acquisition that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to or
cover any property other than the property or equipment being acquired,
and no such extension, renewal or replacement shall extend to or cover
any property not theretofore subject to the Lien being extended,
renewed or replaced; and provided further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (iv) shall
not exceed the amount permitted under Section 5.02(b)(iii)(B) at any
time outstanding and that any such Debt shall not otherwise be
prohibited by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(C); provided that no such
Lien shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) other Liens affecting property of the Borrower
and its Subsidiaries (other than D.C. Chartered Health Plan, Inc.) with
an aggregate fair value not to exceed $1,000,000, provided that no such
Lien shall extend to or cover any Collateral;
(vii) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby;
(viii) Liens in connection with attachments or
judgments (including judgment or appeal bonds), provided that the
judgments secured shall, within 60 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall
have been discharged within 60 days after the expiration of such stay;
or shall be covered (subject to a customary deductible) by insurance
maintained with responsible insurance companies;
(ix) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower
or any of its Consolidated Subsidiaries; and
(x) any interest of a title of a lessor under, and
Liens arising from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to,
leases permitted by this Agreement.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) in the case of the Borrower, the Subordinated
Debentures and the Convertible Preferred Stock;
(ii) in the case of any of the Subsidiary Guarantors,
Debt owed to the Borrower or to another Subsidiary Guarantor, provided
that (x) such Debt is subordinated to any Debt of such Subsidiary
Guarantor under the Loan Documents on terms and conditions acceptable
to the Required
48
Lenders and (y) such Debt is evidenced by a promissory note and such
promissory note is pledged in favor of the Secured Parties pursuant to
the terms of the Security Agreement; and
(iii) in the case of the Borrower and any of its
Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt of the Borrower and its Subsidiaries
(other than D.C. Chartered Health Plan, Inc.) secured
by Liens permitted by Section 5.02(a)(iv) not to exceed in the
aggregate $1,000,000 at any time outstanding,
(C) (i) Capitalized Leases (other than any
Capitalized Leases included in Surviving Debt) entered into by
the Borrower and its Subsidiaries (other than D.C. Chartered
Health Plan, Inc.) not to exceed in the aggregate $5,000,000
at any time outstanding, and (ii) in the case of Capitalized
Leases to which any such Subsidiary of the Borrower is a
party, Debt of the Borrower of the type described in clause
(j) of the definition of "Debt" guaranteeing the Obligations
of such Subsidiary under such Capitalized Leases,
(D) the Surviving Debt, and
(E) endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course
of business.
(c) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee (i) for the rental or hire
of real or personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease including
Capitalized Leases having an original term of one year or more that
would cause the direct and contingent liabilities of the Borrower and
its Subsidiaries, on a Consolidated basis, in respect of all such
obligations to exceed $16,500,000 payable in any period of 12
consecutive months.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary of the Borrower may merge into
or consolidate with the Borrower, (ii) any Subsidiary Guarantor may
merge into or consolidate with any other Subsidiary Guarantor and (iii)
any foreign Subsidiary may merge into or consolidate with any other
foreign Subsidiary; provided, however, that in each case, immediately
after giving effect thereto, no event shall occur and be continuing
that constitutes a Default.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets other than Inventory
to be sold in the ordinary course of its business, except:
(i) sales of Inventory in the ordinary course of its
business,
(ii) in a transaction authorized by subsection (d)
of this Section,
(iii) sales of assets for cash and for fair value in
an aggregate amount not to exceed $5,000,000 in any Fiscal
Year,
49
provided that in the case of sales of assets pursuant to clause (iii)
above, the Borrower shall, on the date of receipt by the Borrower or
any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay
the Advances pursuant to, and in the amount and order of priority set
forth in, Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) (A) Investments by the Borrower and its
Subsidiaries in their Subsidiaries outstanding on the date
hereof, (B) Investments by the Borrower or any Subsidiary in
any Subsidiary Guarantor, (C) additional Investments by the
Borrower and the Subsidiary Guarantors in wholly-owned
domestic Subsidiaries in an aggregate amount invested from the
date hereof not to exceed $5,000,000, provided that, with
respect to Investments in any newly acquired or created
wholly-owned Subsidiary, such Subsidiary (x) shall become an
additional grantor pursuant to the terms of the Security
Agreement and shall become a Subsidiary Guarantor pursuant to
the terms of the Subsidiary Guaranty, in each case if such
Subsidiary is a Material Subsidiary and (y) shall engage in a
business similar to that engaged in by the Borrower and its
Subsidiaries on the date hereof and (C) additional Investments
by foreign Subsidiaries of the Borrower in wholly-owned
Subsidiaries in an aggregate amount invested from the date
hereof not to exceed $500,000;
(ii) loans and advances (other than loans and
advances set forth on Schedule 5.02(f)) to employees in the
ordinary course of the business of the Borrower and its
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(iii) (A) Investments by the Borrower and its
Subsidiaries in Cash Equivalents of amounts on deposit in the
Cash Collateral Account, (B) Investments by D.C. Chartered
Health Plan, Inc. and Virginia Chartered Health Plan, Inc. in
Cash Equivalents of amounts on deposit in deposit accounts
that are required to be kept on deposit by such Person by its
respective governmental regulatory authority and (C)
Investments by the Borrower and its Subsidiaries (other than
the Investments described in clause (A)) in an aggregate
principal amount not to exceed $2,500,000 at any time
outstanding;
(iv) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(ii);
(v) Investments existing on the date hereof and
described on Schedule 5.02(f) hereto; and
(vi) other Investments in an aggregate amount
invested not to exceed $500,000; provided that with respect to
Investments made under this clause (vii), (1) any newly
acquired or created Subsidiary of the Borrower or any of its
Subsidiaries shall be a wholly owned Subsidiary thereof; (2)
immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result
therefrom; (3) any newly acquired or created domestic
Subsidiary of the Borrower or any of its Subsidiaries shall
become an additional grantor pursuant to the terms of the
Security Agreement and shall become a Subsidiary Guarantor
pursuant to the terms of the Subsidiary Guaranty, in each case
if such Subsidiary is a Material Subsidiary and (4) any
business acquired or invested in pursuant to this clause (vii)
shall be in the same line of business as the business of the
Borrower or any of its Subsidiaries.
50
(g) DIVIDENDS, ETC. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such
capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit
any of its Subsidiaries to do any of the foregoing or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any capital stock of the Borrower or any warrants, rights or
options to acquire such capital stock or to issue or sell any capital
stock or any warrants, rights or options to acquire such capital stock,
except that, so long as no Default shall have occurred and be
continuing at the time of any action described in clauses (i), (ii),
(iii) and (iv) below or would result therefrom, (i) the Borrower may
declare and pay dividends and distributions payable only in common
stock of the Borrower, (ii) any Subsidiary of the Borrower may (A)
declare and pay cash dividends to the Borrower and (B) declare and pay
cash dividends to any other wholly-owned Subsidiary of the Borrower of
which it is a Subsidiary, (iii) the Borrower may issue (A) capital
stock in respect of the exercise of outstanding warrants, rights or
options to acquire capital stock or the exercise of stock options
issued pursuant to existing stock option plans of the Borrower, (B)
options to acquire capital stock of the Borrower pursuant to existing
stock option plans of the Borrower, (C) capital stock or any warrants,
rights or options to acquire such capital stock in the ordinary course
of business in order to enter into joint venture arrangements with
other third party Persons with the consent of the Required Lenders
(which consent shall not be unreasonably withheld), (D) capital stock
for cash and fair value, (E) any warrants, rights or options to acquire
its capital stock, in each case exercisable for cash and for fair value
(determined at the time such warrants, rights or options are granted)
and (F) capital stock issued in respect of warrants, rights or options
referred to in clause (E) and (iv) the Borrower or any Subsidiary of
the Borrower may purchase or otherwise acquire capital stock of the
Borrower in an aggregate amount not to exceed $65,000,000 from and
after April 28, 1998.
(h) CHANGE IN NATURE OF BUSINESS. Make, or permit any of its
Material Subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof.
(i) CONSTITUTIVE DOCUMENT AMENDMENTS. Amend, or permit any of
its Subsidiaries to amend, its Constitutive Documents if such amendment
would have a Material Adverse Effect with respect to any Loan Party or
Lender Party.
(j) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required or permitted by generally
accepted accounting principles or (ii) Fiscal Year.
(k) PREPAYMENTS, ETC. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, other than (i) the prepayment of the Advances in
accordance with the terms of this Agreement and (ii) regularly
scheduled or required repayments or redemptions of Surviving Debt, or
amend, modify or change in any manner any term or condition of any
Surviving Debt or the Subordinated Debentures, or permit any of its
Subsidiaries to do any of the foregoing other than to prepay any Debt
payable to the Borrower or any other Loan Party.
(l) AMENDMENT, ETC. of Convertible Preferred Stock Documents
and Subordinated Debenture Documents. Cancel or terminate any
Convertible Preferred Stock Document or any Subordinated Debenture
Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any manner any term or condition of
any Convertible Preferred Stock
51
Document or any Subordinated Debenture Document or give any consent,
waiver or approval thereunder, waive any default under or any breach of
any term or condition of any Convertible Preferred Stock Document or
any Subordinated Debenture Document, agree in any manner to any other
amendment, modification or change of any term or condition of any
Convertible Preferred Stock Document or any Subordinated Debenture
Document or take any other action in connection with any Convertible
Preferred Stock Document or any Subordinated Debenture Document, in
each case in a manner that would materially impair the value of the
interest or rights of the Borrower thereunder or that would materially
impair the rights or interests of the Administrative Agent or any
Lender Party, or permit any of its Subsidiaries to do any of the
foregoing.
(m) AMENDMENT, ETC. OF MATERIAL CONTRACTS. Cancel or terminate
any Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify any Material Contract or
give any consent, waiver or approval thereunder, waive any default
under or breach of any Material Contract, agree in any manner to any
other amendment, modification or change of any term or condition of any
Material Contract or take any other action in connection with any
Material Contract that would materially impair the value of the
interest or rights of the Borrower thereunder or that would materially
impair the interest or rights of the Administrative Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing.
(n) NEGATIVE PLEDGE. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than (i) in favor of the Secured
Parties or (ii) in connection with any Surviving Debt.
(o) PARTNERSHIPS, ETC.. Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(p) SPECULATIVE TRANSACTIONS. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions
(including, without limitation, take-or-pay contracts).
(q) CAPITAL EXPENDITURES. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Subsidiaries in any Fiscal Year to exceed $10,000,000, beginning with
the 1999 Fiscal Year.
SECTION 5.03. REPORTING REQUIREMENTS. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will furnish to the
Lender Parties:
(a) DEFAULT NOTICE. As soon as possible and in any event
within two days after the occurrence of each Default or any event,
development or occurrence that is reasonably likely to have a Material
Adverse Effect with respect to any Loan Party or any Lender Party
continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of such Default
and the action that the Borrower has taken and proposes to take with
respect thereto.
(b) QUARTERLY FINANCIALS. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as of the end of such quarter and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and Consolidated and consolidating
statements of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for
52
the period commencing at the end of the previous Fiscal Year and ending
with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief financial officer
of the Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that no Default
has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that
the Borrower has taken and proposes to take with respect thereto and
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the
covenants contained in Sections 5.04(a) through (f), provided that in
the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(c) ANNUAL FINANCIALS. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of Coopers & Xxxxxxx L.L.P. or other independent
public accountants of recognized standing acceptable to the Required
Lenders, together with (i) a certificate of such accounting firm to the
Lender Parties stating that in the course of the regular audit of the
business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that
a Default under Section 5.04 has occurred and is continuing, or if, in
the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used
by such accountants in determining, as of the end of such Fiscal Year,
compliance with the covenants contained in Sections 5.04(a) through
(f), provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial
statements to GAAP and (iii) a certificate of the chief financial
officer of the Borrower stating that no Default has occurred and is
continuing or, if a default has occurred and is continuing, a statement
as to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto.
(d) ANNUAL FORECASTS. As soon as available and in any event no
later than 15 days before the end of each Fiscal Year, forecasts
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent, of balance sheets, income statements and cash
flow statements on a quarterly basis for each Fiscal Year until the
Termination Date.
(e) ERISA EVENTS AND ERISA REPORTS. Promptly and in any event
within 10 days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA Event and
the action, if any, that such Loan Party or such ERISA Affiliate has
taken and proposes to take with respect thereto and on the date any
records, documents or other information must be furnished to the PBGC
with respect to any Plan pursuant to Section 4010 of ERISA, a copy of
such records, documents and information.
(f) PLAN TERMINATIONS. Promptly and in any event within two
Business Days after receipt
53
thereof by any Loan Party or any ERISA Affiliate, copies of each notice
from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.
(g) MULTIEMPLOYER PLAN NOTICES. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (i) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (ii) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (iii) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (i) or (ii).
(h) LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.01(j), and promptly after the occurrence
thereof, notice of any adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the Disclosed
Litigation from that described on Schedule 3.01(f).
(i) SECURITIES REPORTS. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders, and copies of all regular, periodic and special reports,
and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(j) CREDITOR REPORTS. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to
any other clause of this Section 5.03.
(k) AGREEMENT NOTICES. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party
or any of its Subsidiaries under or pursuant to any Material Contract
or indenture, loan or credit or similar agreement regarding or related
to any breach or default by any party thereto or any other event that
could materially impair the value of the interests or the rights of any
Loan Party or otherwise have a Material Adverse Effect with respect to
any Loan Party or any Lender Party and copies of any amendment,
modification or waiver of any provision of any Material Contract or
indenture, loan or credit or similar agreement and, from time to time
upon request by the Administrative Agent, such information and reports
regarding the Material Contracts as the Administrative Agent may
reasonably request.
(l) TAX CERTIFICATES. Promptly, and in any event within five
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a
certificate (a "TAX CERTIFICATE"), signed by the President or the chief
financial officer of the Borrower, stating that the common parent of
the affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which the Borrower is a member has paid to
the Internal Revenue Service or other taxing authority, or to the
Borrower, the full amount that such affiliated group is required to pay
in respect of Federal income tax for such year and that the Borrower
and its Subsidiaries have received any amounts payable to them, and
have not paid amounts in respect of taxes (Federal, state, local or
foreign) in excess of the amount they are required to pay, under the
Tax Agreements in respect of such taxable year.
(m) ENVIRONMENTAL CONDITIONS. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its
54
Subsidiaries with any Environmental Law or Environmental Permit that
(i) could reasonably be expected to have a Material Adverse Effect with
respect to the Borrower and its Subsidiaries, taken as a whole, or any
Lender Party or (ii) cause any property described in the Mortgages to
be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(n) REAL PROPERTY. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(gg) and 4.01(hh) hereto, including an
identification of all material real and leased property disposed of by
the Borrower or any of its Subsidiaries during such Fiscal Year, a list
and description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof, and in the case
of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all material real property acquired or leased
during such Fiscal Year and a description of such other changes in the
information included in such Schedules as may be necessary for such
Schedules to be accurate and complete in all material respects.
(o) INSURANCE. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
the Borrower and its Subsidiaries and containing such additional
information as any Lender Party (through the Administrative Agent) may
reasonably specify.
(p) OTHER INFORMATION. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Lender Party (through the Administrative Agent) may from time to
time reasonably request.
SECTION 5.04. FINANCIAL COVENANTS. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will:
(a) MINIMUM EBITDA. Maintain at the end of each fiscal quarter
of the Borrower Consolidated EBITDA of the Borrower and its
Subsidiaries of not less than the amount set forth below for such
fiscal quarter set forth below:
Minimum
Quarter Ending On EBITDA
July 31, 1998 $10,800,000
October 31, 1998 $13,400,000
January 31, 1999 $13,800,000
and thereafter
(b) FIXED CHARGE COVERAGE RATIO. Maintain at the end of each fiscal
quarter of the Borrower commencing with the fiscal quarter ending July 31, 1998
a ratio of Consolidated EBITDA for the most recently completed four fiscal
quarters of the Borrower and its Subsidiary LESS the aggregate amount of cash
Capital Expenditures made by the Borrower and its Subsidiaries during such four
fiscal quarter period to the sum of (i) interest payable on, and amortization
of debt discount in respect of, all Debt PLUS (ii) principal amounts of all
Funded Debt payable, in each case, by the Borrower and its Subsidiaries during
such four fiscal quarter period of not less than 1.25 to 1.
55
(c) LEVERAGE RATIO. Maintain at the end of each fiscal quarter of the
Borrower a Leverage Ratio of not more than the ratio set forth below for such
fiscal quarter:
Quarter Ending On Ratio
July 31, 1998 3.50 : 1.00
October 31, 1998 3.25 : 1.00
January 31, 1999 3.00 : 1.00
and thereafter
(d) MINIMUM NET WORTH. Maintain at the end of each fiscal quarter of
the Borrower commencing with the fiscal quarter ending July 31, 1998 an excess
of Consolidated total assets over Consolidated total liabilities, in each case
of the Borrower and its Subsidiaries of not less than $85,500,000 PLUS 75% of
Consolidated net income of the Borrower and its Subsidiaries for the period
after April 30, 1998 to and including each date of determination computed on a
cumulative basis for said entire period PLUS 100% of all net proceeds from the
sale or issuance by the Borrower or any of its Subsidiaries of capital stock or
other ownership or profit interest, any securities convertible into or
exchangeable for capital stock or other ownership or profit interest or any
warrants, rights, options or other securities to acquire capital stock or other
ownership or profit interest; PROVIDED, HOWEVER, that, in calculating the net
worth of the Borrower in accordance with the provisions of this Section
5.04(d), any purchase or other acquisition of capital stock of the Borrower
permitted by the provisions of Section 5.02(g) shall be excluded.
(g) MINIMUM LIQUIDITY RATIO. Maintain at the end of each fiscal quarter
of the Borrower a ratio of (i) the sum of cash of the Borrower and its
Subsidiaries plus accounts receivable of the Borrower and its Subsidiaries as of
the end of such fiscal quarter less accounts receivable of the Borrower and its
Subsidiaries relating to D.C. Chartered Health Plan, Inc. as of the end of such
fiscal quarter to (ii) the sum of accounts payable of the Borrower and its
Subsidiaries as of the end of such fiscal quarter plus claims payable of the
Borrower and its Subsidiaries as of the end of such fiscal quarter, of not less
than 1.25:1:00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail to
pay any interest on any Advance, or any Loan Party shall fail to make any other
payment under any Loan Document, in each case under this clause (ii) within 3
Business Day(s) after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant or
agreement contained in Xxxxxxx 0.00, 0.00(x), (x), (x), (x), (x), (x) or (q),
5.02, 5.03 or 5.04; or
56
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 20 days after the earlier
of the date on which (A) a Responsible Officer of the Borrower becomes aware of
such failure or (B) written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender Party; or
(e) any Loan Party or any of such Loan Party's Subsidiaries shall fail
to pay any principal of, premium or interest on or any other amount payable in
respect of any Debt that is outstanding in a principal or notional amount of at
least $2,500,000 either individually or in the aggregate (but excluding Debt
outstanding hereunder) of such Loan Party or such Subsidiary (as the case may
be), when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or required to
be prepaid or redeemed (other than by a regularly scheduled required prepayment
or redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) any Loan Party or any of such Loan Party's Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of such Loan Party's Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 30 days or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall occur;
or any Loan Party or any of such Loan Party's Subsidiaries shall take any
corporate (or the equivalent thereof) action to authorize any of the actions
set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
$2,500,000 shall be rendered against any Loan Party or any of such Loan Party's
Subsidiaries and either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of such Loan Party's Subsidiaries that could be reasonably
likely to have a Material Adverse Effect with respect to any Loan Party or any
Lender Party, and there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(p) shall for any reason cease to be valid and binding
on or enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing; or
(j) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the
57
date of occurrence of such ERISA Event) of the Insufficiency of such Plan and
the Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the Loan Parties
and the ERISA Affiliates related to such ERISA Event) exceeds $1,000,000; or
(k) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $1,000,000 or requires payments exceeding $200,000 per
annum; or
(l) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $200,000; or
(m) (i) any Person or two or more Persons acting in concert other than
the Founders shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the Borrower
(or other Securities convertible into such Voting Stock) representing 25% or
more of the combined voting power of all Voting Stock of the Borrower; or (ii)
any Person or two or more Persons acting in concert other than the Founders
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 securities) representing 25% or more of the combined
voting power of all Voting Stock of the Borrower;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Appropriate Lender to make Advances (other than
Letter of Credit Advances by an Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c)) and of the Issuing Bank to issue Letters of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances (other than Letter of
Credit Advances by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.03(c)) and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON
DEFAULT. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit
58
then outstanding. If at any time the Administrative Agent determines that any
funds held in the L/C Cash Collateral Account are subject to any right or claim
of any Person other than the Administrative Agent and the Lender Parties or that
the total amount of such funds is less than the aggregate Available Amount of
all Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender Party (in its
capacities as a Lender, an Issuing Bank (if applicable)) hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that the Administrative Agent shall not be required to take any action that
exposes the Administrative Agent to personal liability or that is contrary to
this Agreement or applicable law. The Administrative Agent agrees to give to
each Lender Party prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. NATIONSBANK AND AFFILIATES. With respect to its
Commitments, the Advances made by it and the Notes issued to it, NationsBank
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not the Administrative
Agent; and the term "Lender Party" or "Lenders Parties" shall, unless otherwise
expressly indicated, include NationsBank in its
59
individual capacity. NationsBank and its affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person who may do business with or own
securities of any Loan Party or any such Subsidiary, all as if NationsBank were
not the Administrative Agent and without any duty to account therefor to the
Lender Parties.
SECTION 7.04. LENDER PARTY CREDIT DECISION. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party 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.
SECTION 7.05. IDEMNIFICATION. (a) Each Lender Party severally agrees to
indemnify the Administrative Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by the Administrative Agent under
the Loan Documents; PROVIDED, HOWEVER, that no Lender Party shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that the Administrative Agent
is not promptly reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(a), the Lender Parties' respective ratable shares
of any amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing to
the respective Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time,
(c) respective Unused Tranche A Revolving Credit Commitments at such time and
(d) their respective Unused Tranche A Revolving Credit Commitments at such time;
PROVIDED that the aggregate principal amount of Letter of Credit Advances owing
to the Issuing Bank shall be considered to be owed to the Tranche A Revolving
Credit Lenders ratably in accordance with their respective Tranche A Revolving
Credit Commitments. In the event that any Defaulted Advance shall be owing by
any Defaulting Lender at any time, such Lender Party's Commitment with respect
to the Facility under which such Defaulted Advance was required to have been
made shall be considered to be unused for purposes of this Section 7.05(a) to
the extent of the amount of such Defaulted Advance. The failure of any Lender
Party to reimburse the Administrative Agent promptly upon demand for its ratable
share of any amount required to be paid by the Lender Party to the
Administrative Agent as provided herein shall not relieve any other Lender Party
of its obligation hereunder to reimburse the Administrative Agent for its
ratable share of such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse the Administrative Agent for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05(a) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the
Issuing Bank in any way relating to or arising out of the Loan Documents or any
action taken or omitted by the Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender Party agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent
that the Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower. For purposes of this Section 7.05(b), the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (b) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (c) their respective Unused Tranche B Revolving
Credit Commitments at such time plus (d) their respective Unused Tranche B
Revolving Credit Commitments at such time; provided, that the aggregate
principal amount of Letter of Credit Advances owing to the Issuing Bank shall be
considered to be owed to the Tranche A Revolving Credit Lenders ratably in
accordance with their respective Revolving Tranche A Credit Commitments. In the
event that any Defaulted Advance shall be owing by any Defaulting Lender at any
time, such Lender Party's Commitment with respect to the Facility under which
such Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(b) to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse the Issuing Bank
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Parties to the Issuing Bank as provided herein shall not relieve any
other Lender Party of its obligation hereunder to reimburse the Issuing Bank for
its ratable share of such amount, but no Lender Party shall be responsible for
the failure of any other Lender Party to reimburse the Issuing Bank for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05(b) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agents. The Administrative Agent
may resign as to any or all of the Facilities at any time by giving written
notice thereof to the Lender Parties and the Borrower and may be removed as to
all of the Facilities at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent as to such of the Facilities as to
which the Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to all of the Facilities
and upon the execution and filing or recording of such financing statements, or
amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such amendments or
supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested
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with all the rights, powers, discretion, privileges and duties of the retiring
Administrative Agent as to such Facilities, other than with respect to funds
transfers and other similar aspects of the administration of Borrowings under
such Facilities, issuances of Letters of Credit (notwithstanding any resignation
as Administrative Agent with respect to the Letter of Credit Facility) and
payments by the Borrower in respect of such Facilities, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement as to such Facilities, other than as aforesaid. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent as to any Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders (except as provided by clause
(a) below) and, in the case of any amendment of, or a waiver in respect of, a
Loan Document, each Loan Party party to such Loan Document, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) any amendment, waiver or
consent of any provision of Section 5.03 shall be in writing and signed by
NationsBank, (b) no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender Party that is, at such time,
a Defaulting Lender), do any of the following at any time: (i) waive any of the
conditions specified in Section 3.01 or, in the case of the Initial Extension of
Credit, Section 3.02, (ii) change the number of Lenders or the percentage of (x)
the Commitments, (y) the aggregate unpaid principal amount of the Advances or
(z) the aggregate Available Amount of outstanding Letters of Credit that, in
each case, shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of the Subsidiary Guarantors
under Section 1 of the Subsidiary Guaranty or otherwise limit the Subsidiary
Guarantors' liability with respect to the Obligations owing to the
Administrative Agent and the Lender Parties, (iv) release any material portion
of the Collateral in any transaction or series of related transactions or permit
the creation, incurrence, assumption or existence of any Lien on any material
portion of the Collateral in any transaction or series of related transactions
to secure any Obligations other than Obligations owing to the Secured Parties
under the Loan Documents and other than Debt owing to any other Person, provided
that, in the case of any Lien on any material portion of the Collateral to
secure Debt owing to any other Person, (A) the Borrower shall, on the date such
Debt shall be incurred or issued, prepay the Advances pursuant to, and in the
order of priority set forth in, Section 2.06(b)(ii) in an aggregate principal
amount equal to the amount of such Net Cash Proceeds to the extent required to
do so under Section 2.06(b)(ii), (B) such Lien shall be subordinated to the
Liens created under the Loan Documents on terms acceptable to the Required
Lenders and (C) the Required Lenders shall otherwise permit the creation,
incurrence, assumption or existence of such Lien and, to the extent not
otherwise permitted under Section 5.02(b), of such Debt, (v) amend this Section
8.01, or (vi) limit the liability of any Loan Party under any of the Loan
Documents and (c) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each Lender that has a Commitment under the
Term Facility or Revolving Credit Facility if affected by such amendment, waiver
or consent, (i) increase the Commitments of such Lender or subject such Lender
to any additional obligations, (ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender, (iii) postpone any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender or (iv) change the order of application of any
prepayment set forth in Section 2.06 in any manner that materially affects such
Lender; provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank, in addition to the Lenders required
above to take
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such action, affect the rights or obligations of the Issuing Bank under this
Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at 00000 Xxxxxxxx Xxxx Xxxxx, Xxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx; if to any Initial Lender or the Initial
Issuing Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender Party, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender
Party; and if to the Administrative Agent, at its address at NationsBank, N.A.,
0 XxxxxxxXxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxx, XX, Attention: Xxxxx Xxxxxx; or, as
to the Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to the Administrative Agent pursuant to Article
II, III or VII shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect
thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against (and will reimburse each Indemnified Party as the same
are incurred) any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees, disbursements and other charges
of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation,
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in connection with any investigation, litigation or proceeding or preparation of
a defense in connection therewith) (A) (i) the Transaction or (ii) the
Facilities or any other financing or any actual or proposed use of the proceeds
of the Advances or the Letters of Credit, the Loan Documents or (B) the actual
or alleged presence of Hazardous Materials on any property of any Loan Party or
any of its Subsidiaries or any Environmental Action relating in any way to any
Loan Party or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the Transaction and other
transactions contemplated hereby are consummated. The Borrower also agrees not
to assert any claim against the Administrative Agent, any Lender Party or any of
their Affiliates, or any of their respective officers, directors, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of
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set-off) that such Lender Party and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Initial
Lender and the Initial Issuing Bank that such Initial Lender and the Initial
Issuing Bank have executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of one or more Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000, (iii) each such assignment shall be to an Eligible Assignee, and
(iv) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (y) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder 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 or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor 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 Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party 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 confirms
that
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it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in 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 or
Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. In the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under a Facility pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder under such Facility, a new Note to the order of the assigning Lender
in an amount equal to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or A-2 hereto, as the case may be.
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or
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release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither the
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit comply with the terms of the
Letter of Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Confidentiality. Neither the Administrative Agent nor
any Lender Party shall disclose any Confidential Information to any Person
without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender Party's Affiliates and their officers, directors,
employees, agents and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties
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hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 8.12. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
PHP HEALTHCARE CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-----------------------
Title: Executive Vice President
Chief Financial Officer
NATIONSBANK, N.A.,
as Administrative Agent
By /s/ Xxxxx Xxxxxx
----------------------
Title: Vice President
Initial Lenders
NATIONSBANK, N.A.
By /s/ Xxxxx Xxxxxx
----------------------
Title: Vice President
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