Exhibit 10.9
CREDIT AGREEMENT
Dated as of August 27, 1999
among
XXXXXX COMMUNICATIONS, INC.,
as Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS NAMED HEREIN
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
BANKERS TRUST COMPANY,
as Documentation Agent
Arranged by:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS.........................................................1
1.1 Definitions......................................................1
-----------
1.2 Computation of Time Periods.....................................24
---------------------------
1.3 Accounting Terms................................................24
----------------
SECTION 2 CREDIT FACILITIES.................................................25
2.1 Commitments.....................................................25
-----------
2.2 Method of Borrowing.............................................26
-------------------
2.3 Interest........................................................27
--------
2.4 Repayment.......................................................27
---------
2.5 Notes...........................................................28
-----
2.6 Additional Provisions relating to Letters of Credit.............28
---------------------------------------------------
2.7 Additional Provisions relating to Swingline Loans...............32
-------------------------------------------------
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES....................33
----------------------------------------------
3.1 Default Rate....................................................33
------------
3.2 Extension and Conversion........................................33
------------------------
3.3 Prepayments.....................................................34
-----------
3.4 Reduction and Termination of Commitments........................34
----------------------------------------
3.5 Fees............................................................35
----
3.6 Capital Adequacy................................................36
----------------
3.7 Limitation on Eurodollar Loans..................................36
------------------------------
3.8 Illegality......................................................36
----------
3.9 Requirements of Law.............................................37
-------------------
3.10 Treatment of Affected Loans....................................38
---------------------------
3.11 Taxes..........................................................38
-----
3.12 Compensation...................................................40
------------
3.13 Pro Rata Treatment.............................................41
------------------
3.14 Sharing of Payments............................................42
-------------------
3.15 Payments, Computations, Etc....................................42
---------------------------
3.16 Evidence of Debt...............................................44
----------------
3.17 Certain Limitations............................................44
-------------------
SECTION 4 GUARANTY..........................................................45
--------
4.1 The Guaranty....................................................45
------------
4.2 Obligations Unconditional.......................................46
-------------------------
4.3 Reinstatement...................................................47
-------------
4.4 Certain Additional Waivers......................................47
--------------------------
4.5 Remedies........................................................47
--------
4.6 Rights of Contribution..........................................48
----------------------
4.7 Guarantee of Payment; Continuing Guarantee......................49
------------------------------------------
SECTION 5 CONDITIONS........................................................49
----------
5.1 Closing Conditions..............................................49
------------------
5.2 Conditions to all Extensions of Credit..........................51
--------------------------------------
SECTION 6 REPRESENTATIONS AND WARRANTIES....................................52
------------------------------
6.1 Financial Condition.............................................52
-------------------
6.2 No Changes or Restricted Payments...............................52
---------------------------------
i
6.3 Organization; Existence; Compliance with Law....................53
--------------------------------------------
6.4 Power; Authorization; Enforceable Obligations...................53
---------------------------------------------
6.5 No Legal Bar....................................................53
------------
6.6 No Material Litigation and Disputes.............................54
-----------------------------------
6.7 No Defaults.....................................................54
-----------
6.8 Ownership and Operation of Property.............................54
-----------------------------------
6.9 Intellectual Property...........................................55
---------------------
6.10 No Burdensome Restrictions.....................................55
--------------------------
6.11 Taxes..........................................................55
-----
6.12 ERISA..........................................................55
-----
6.13 Governmental Regulations, Etc..................................56
-----------------------------
6.14 Subsidiaries...................................................57
------------
6.15 Purpose of Extensions of Credit................................57
-------------------------------
6.16 Environmental Matters..........................................57
---------------------
6.17 Year 2000 Compliance...........................................58
--------------------
6.18 No Material Misstatements......................................59
-------------------------
6.19 Labor Matters..................................................59
-------------
6.20 Solvency.......................................................59
--------
6.21 No Other Broker's Fees.........................................60
----------------------
SECTION 7 AFFIRMATIVE COVENANTS.............................................60
---------------------
7.1 Information Covenants...........................................60
---------------------
7.2 Preservation of Existence and Franchises........................63
----------------------------------------
7.3 Books and Records...............................................63
-----------------
7.4 Compliance with Law.............................................64
-------------------
7.5 Payment of Taxes and Other Indebtedness.........................64
---------------------------------------
7.6 Insurance.......................................................64
---------
7.7 Maintenance of Property.........................................64
-----------------------
7.8 Performance of Obligations......................................64
--------------------------
7.9 Use of Proceeds.................................................64
---------------
7.10 Audits/Inspections.............................................65
------------------
7.11 Financial Covenants............................................65
-------------------
7.12 Additional Guarantors..........................................65
---------------------
7.13 Year 2000 Compliance...........................................66
--------------------
SECTION 8 NEGATIVE COVENANTS................................................66
------------------
8.1 Indebtedness....................................................66
------------
8.2 Liens...........................................................67
-----
8.3 Nature of Business..............................................67
------------------
8.4 Merger and Consolidation, Dissolution and Acquisitions..........68
------------------------------------------------------
8.5 Asset Dispositions..............................................68
------------------
8.6 Investments.....................................................69
-----------
8.7 Restricted Payments.............................................69
-------------------
8.8 Modifications and Payments in respect of Other Funded Debt......69
----------------------------------------------------------
8.9 Transactions with Affiliates....................................70
----------------------------
8.10 Fiscal Year; Organizational Documents..........................70
-------------------------------------
8.11 Sale Leasebacks................................................70
---------------
SECTION 9 EVENTS OF DEFAULT.................................................71
-----------------
ii
9.1 Events of Default...............................................71
-----------------
9.2 Acceleration; Remedies..........................................73
----------------------
SECTION 10 AGENCY PROVISIONS................................................74
-----------------
10.1 Appointment, Powers and Immunities.............................74
----------------------------------
10.2 Reliance by Administrative Agent...............................75
--------------------------------
10.3 Defaults.......................................................75
--------
10.4 Rights as a Lender.............................................75
------------------
10.5 Indemnification................................................76
---------------
10.6 Non-Reliance on Administrative Agent and Other Lenders.........76
------------------------------------------------------
10.7 Successor Administrative Agent.................................77
------------------------------
SECTION 11 MISCELLANEOUS....................................................77
-------------
11.1 Notices........................................................77
-------
11.2 Right of Set-Off; Adjustments..................................79
-----------------------------
11.3 Benefit of Agreement...........................................79
--------------------
11.4 No Waiver; Remedies Cumulative.................................81
------------------------------
11.5 Expenses; Indemnification......................................81
-------------------------
11.6 Amendments, Waivers and Consents...............................82
--------------------------------
11.7 Counterparts...................................................84
------------
11.8 Headings.......................................................84
--------
11.9 Survival.......................................................84
--------
11.10 Governing Law; Submission to Jurisdiction; Venue..............84
------------------------------------------------
11.11 Severability..................................................85
------------
11.12 Entirety......................................................85
--------
11.13 Binding Effect; Termination...................................85
---------------------------
11.14 Confidentiality...............................................85
---------------
11.15 Source of Funds...............................................86
---------------
11.16 Conflict......................................................87
--------
iii
SCHEDULES
---------
Schedule 2.1 Lenders and Commitments
Schedule 2.2(a)(i) Form of Notice of Borrowing
Schedule 2.2(a)(ii) Form of Notice of Request of Letter of Credit
Schedule 2.5 Form of Revolving Note
Schedule 2.6(b) Existing Letters of Credit
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(e)(v) Form of Officer's Certificate
Schedule 6.6 Litigation
Schedule 6.8 Liens
Schedule 6.14 Subsidiaries
Schedule 6.19 Labor Matters
Schedule 7.1(c) Form of Officer's Compliance Certificate
Schedule 7.12 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 8.6 Investments
Schedule 11.1 Lenders' Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
iv
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 27, 1999 (the "Credit
------
Agreement"), is by and among XXXXXX COMMUNICATIONS, INC., a Delaware corporation
---------
(the "Borrower"), the Subsidiaries of the Borrower identified as Guarantors on
--------
the signature pages hereto and such other Subsidiaries of the Borrower as may
from time to time become Guarantors hereunder in accordance with the provisions
hereof (the "Guarantors"), the lenders named herein and such other lenders as
----------
may become a party hereto (the "Lenders"), BANK OF AMERICA, N.A., as
-------
Administrative Agent for the Lenders (in such capacity, the "Administrative
--------------
Agent"), and THE FIRST NATIONAL BANK OF CHICAGO, as Syndication Agent.
-----
WITNESSETH
WHEREAS, the Borrower has requested that the Lenders provide $195 million
in credit facilities for the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested credit facilities
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
-----------
1.1 Definitions.
-----------
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Acquisition", by any Person, means the purchase or acquisition by such
-----------
Person of any Capital Stock of another Person other than a member of the
Consolidated Group or all or any substantial portion of the Property (other
than Capital Stock) of another Person other than a member of the
Consolidated Group, whether or not involving a merger or consolidation with
such other Person.
"Adjusted Base Rate" means the Base Rate plus the Applicable Percentage.
------------------ ----
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the Applicable
------------------------ ----
Percentage.
"Administrative Agent" shall have the meaning assigned to such term in
--------------------
the heading hereof, together with any successors or assigns.
"Administrative Agent's Fee Letter" means that certain letter agreement,
---------------------------------
dated as of July 19, 1999, between the Administrative Agent and the
Borrower, as amended, modified, restated or supplemented from time to time.
"Administrative Agent's Fees" shall have the meaning assigned to such
---------------------------
term in Section 3.5(c).
"Affiliate" means, with respect to any Person, any other Person (i)
---------
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding ten percent (10%) or more of the Capital Stock in such
Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Services Address" means the notice address for the
-----------------------
Administrative Agent set forth in Section 11.1 or such other address as may
be identified by written notice from the Administrative Agent to the
Borrower.
"Aggregate Revolving Committed Amount" shall have the meaning assigned
------------------------------------
to such term in Section 2.1(a).
"Applicable Lending Office" means, for each Lender, the office of such
-------------------------
Lender (or of an affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower by written notice
as the office by which its Eurodollar Loans are made and maintained.
"Applicable Percentage" means for any day, the rate per annum set forth
---------------------
below opposite the applicable Consolidated Total Leverage Ratio then in
effect, it being understood that the Applicable Percentage for (i) Base
Rate Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) Eurodollar Loans shall be the percentage set forth under the
column "Eurodollar Margin and Standby Letter of Credit Fee", (iii) the
Standby Letter of Credit Fee shall be the percentage set forth under the
column "Eurodollar Margin and Standby Letter of Credit Fee" and (iv) the
Commitment Fee shall be the percentage set forth under the column
"Commitment Fee":
Consolidated Total Eurodollar Margin
Pricing Leverage Base Rate and Commitment
Level Ratio Margin Standby Letter of Credit Fee Fee
----- ----- ------ ---------------------------- ---
I Greater than or equal to 2.0 0.25% 1.875% 0.35%
II Less than 2.0 but Greater than or equal to 1.5 0.00% 1.625% 0.30%
III Less than 1.5 but Greater than or equal to 1.0 0.00% 1.375% 0.30%
2
IV Less than 1.0 but Greater than or equal to 0.5 0.00% 1.125% 0.30%
V Less than 0.5 0.00% 0.875% 0.25%
The Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Rate Determination Date") five (5) Business Days after the
-----------------------
date by which the annual and quarterly compliance certificates and related
financial statements and information are required in accordance with the
provisions of Sections 7.1(a), (b) and (c), as appropriate; provided that:
--------
(i) the initial Applicable Percentages shall be based on the
financial statements and related financial information for the most
recent fiscal quarter ending prior to the Closing Date, and
(ii) notwithstanding the foregoing, in the event an annual or
quarterly compliance certificate and related financial statements and
information are not delivered timely to the Agency Services Address by
the date required by Sections 7.1(a), (b) or (c), as appropriate, the
Applicable Percentages shall be based on pricing level I until such
time as an appropriate compliance certificate and related financial
statements and information are delivered, whereupon the applicable
pricing level shall be adjusted based on the information contained in
such compliance certificate and related financial statements and
information.
Subject to the qualifications set forth above, each Applicable Percentage
shall be effective from a Rate Determination Date until the next such Rate
Determination Date. The Administrative Agent shall determine the
appropriate Applicable Percentages in the pricing matrix promptly upon
receipt of the quarterly or annual compliance certificate and related
financial information and shall promptly notify the Borrower and the
Lenders of any change thereof. Such determinations by the Administrative
Agent shall be conclusive absent manifest error. Adjustments in the
Applicable Percentages shall be effective as to existing Extensions of
Credit as well as new Extensions of Credit made thereafter.
"Asset Disposition" shall mean and include the sale, lease or other
-----------------
disposition of any Property by any member of the Consolidated Group
(including the Capital Stock of a Subsidiary other than (A) the sale of
inventory in the ordinary course of business, (B) the sale, lease or other
disposition of machinery and equipment no longer used or useful in the
conduct of such member's business and (C) a sale, lease, transfer or
disposition of Property to a Domestic Credit Party.
"Bank of America" means Bank of America, N.A., and its successors.
---------------
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
---------------
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence
----------------
of any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person
3
in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
ordering the winding up or liquidation of its affairs; or (ii) there shall
be commenced against such Person an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
any case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for
the winding up or liquidation of its affairs, and such involuntary case or
other case, proceeding or other action shall remain undismissed,
undischarged or unbonded for a period of sixty (60) consecutive days; or
(iii) such Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its
Property or make any general assignment for the benefit of creditors; or
(iv) such Person shall be unable to, or shall admit in writing its
inability to, pay its debts generally as they become due.
"Base Rate" means, for any day, the rate per annum equal to the
---------
higher of (a) the Federal Funds Rate for such day plus one-half of one
percent (0.5%) and (b) the Prime Rate for such day. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or Federal
Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
--------------
determined by reference to the Base Rate.
"Borrower" means Xxxxxx Communications, Inc., a Delaware corporation,
--------
as referenced in the opening paragraph, its successors and permitted
assigns.
"Business Day" means a day other than a Saturday, Sunday or other
------------
day on which commercial banks in Charlotte, North Carolina or New York, New
York are authorized or required by law to close, except that, when used in
------ ----
connection with a Eurodollar Loan, such day shall also be a day on which
dealings between banks are carried on in Dollar deposits in London,
England.
"Capital Lease" means, as applied to any Person, any lease of any
-------------
Property by that Person as lessee which, in accordance with GAAP, is or
should be accounted for as a capital lease on the balance sheet of that
Person.
"Capital Stock" means (i) in the case of a corporation, capital
-------------
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a
limited liability company, membership interests and (v) any other interest
or participation that
4
confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
----------------
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits
and certificates of deposit of (i) any Lender, (ii) any domestic commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x is at
least P-1 or the equivalent thereof (any such bank being an "Approved
--------
Bank"), in each case with maturities of not more than 270 days from the
date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within six months of
the date of acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the
United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the following
-----------------
events: (i) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership, directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
other agreement that, upon consummation, will result in its or their
acquisition of or control over (other than any such contract or other
agreement which requires the consent of the Lenders hereunder as a
condition precedent to the consummation of such acquisition of or control
over), Voting Stock of the Borrower (or other securities convertible into
such Voting Stock) representing 35% or more of the combined voting power of
all Voting Stock of the Borrower or (ii) during any period of up to 24
consecutive months, commencing after the Closing Date, individuals who at
the beginning of such 24 month period were directors of the Borrower
(together with any new director whose election by the Borrower's board of
directors or whose nomination for election by the Borrower's shareholders
was approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the directors of the Borrower
then in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act.
5
"Closing Date" means the date hereof.
------------
"Commitment Fee" shall have the meaning assigned to such term in
--------------
Section 3.5(a).
"Commitments" means any of the Revolving Commitments, the LOC
-----------
Commitments and/or the Swingline Commitments.
"Commitment Period" means the period from and including the Closing
-----------------
Date to but not including the earlier of (i) the Termination Date or (ii)
the date on which the Commitments terminate in accordance with the
provisions of this Credit Agreement.
"Committed Amount" means any of the Revolving Committed Amount, the
----------------
LOC Committed Amount and/or the Swingline Committed Amount.
"Consolidated Capital Expenditures" means, for any period for the
---------------------------------
Consolidated Group, without duplication, all expenditures (whether paid in
cash or other consideration) during such period that, in accordance with
GAAP, are or should be included in additions to property, plant and
equipment or similar items reflected in the consolidated statement of cash
flows for such period; provided, that Consolidated Capital Expenditures
--------
shall not include, for purposes hereof, expenditures of proceeds of
insurance settlements, condemnation awards and other settlements in respect
of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property
or otherwise to acquire assets or properties useful in the business of the
members of the Consolidated Group.
"Consolidated EBITDA" means, for any period for the Consolidated
-------------------
Group, the sum of (i) Consolidated Net Income for such period plus (ii)
----
to the extent deducted in determining net income for such period, (A)
Consolidated Interest Expense, (B) taxes and (C) depreciation and
amortization, in each case on a consolidated basis determined in accordance
with GAAP. Except as otherwise expressly provided, the applicable period
shall be for the four consecutive fiscal quarters ending as of the date of
determination.
"Consolidated Group" means the Borrower and its consolidated
------------------
subsidiaries, as determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of the last day of
------------------------------------
each fiscal quarter, the ratio of Consolidated EBITDA for the period of
four consecutive fiscal quarters ending as of such day to Consolidated
Interest Expense for the period of four consecutive fiscal quarters ending
as of such day.
"Consolidated Interest Expense" means, for any period for the
-----------------------------
Consolidated Group, all interest expense, including the amortization of
debt discount and premium, the interest component under Capital Leases and
the implied interest component under
6
Securitization Transactions, in each case on a consolidated basis determined in
accordance with GAAP applied on a consolidated basis. Except as expressly
provided otherwise, the applicable period shall be for the four consecutive
fiscal quarters ending as of the date of determination.
"Consolidated Net Income" means, for any period for the Consolidated Group,
-----------------------
net income (or loss) determined on a consolidated basis in accordance with GAAP,
but (a) excluding for purposes of determining the Consolidated Total Leverage
Ratio and Consolidated Interest Coverage Ratio (i) non-recurring, non-cash
charges associated with Permitted Acquisitions, Acquisitions consummated prior
to the Closing Date, restructurings, reorganizations, spin-offs and
restructuring and integration costs, and (ii) any extraordinary gains or losses
and related tax effects thereon, and (b) including for purposes of determining
the Consolidated Total Leverage Ratio and Consolidated Interest Coverage Ratio
the cash portion of non-cash charges in a previous period. Except as otherwise
expressly provided, the applicable period shall be for the four consecutive
fiscal quarters ending as of the date of determination.
"Consolidated Net Worth" means, as of any date for the Consolidated Group,
----------------------
consolidated shareholder's equity or net worth as determined in accordance with
GAAP.
"Consolidated Total Funded Debt" means Funded Debt of the Consolidated
------------------------------
Group determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Leverage Ratio" means, as of the last day of each
---------------------------------
fiscal quarter, the ratio of Consolidated Total Funded Debt on such day to
Consolidated EBITDA for the period of four consecutive fiscal quarters ending as
of such day.
"Continue", "Continuation", and "Continued" shall refer to the continuation
-------- ------------ ---------
pursuant to Section 3.2 hereof of a Eurodollar Loan from one Interest Period to
the next Interest Period.
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
security issued by such Person or of any material agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Convert", "Conversion", and "Converted" shall refer to a conversion
------- ---------- ---------
pursuant to Section 3.2 or Sections 3.7 through 3.12, inclusive, of a Base
Rate Loan into a Eurodollar Loan.
"Credit Documents" means a collective reference to this Credit Agreement,
----------------
the Notes, the LOC Documents, each Joinder Agreement, the Administrative Agent's
Fee Letter and all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto (in each case as the same
may be amended, modified, restated, supplemented, extended, renewed or replaced
from time to time), and "Credit Document" means any one of them.
---------------
7
"Credit Parties" means a collective reference to the Borrower and the
--------------
Guarantors, and "Credit Party" means any one of them.
------------
"Default" means any event, act or condition which with notice or lapse of
-------
time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a) has failed to
-----------------
make a Loan or purchase a Participation Interest required pursuant to the terms
of this Credit Agreement within one Business Day of when due, (b) other than as
set forth in (a) above, has failed to pay to the Administrative Agent or any
Lender an amount owed by such Lender pursuant to the terms of this Credit
Agreement within one Business Day of when due, unless such amount is subject to
a good faith dispute or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or with respect to which (or with respect to
any of the assets of which) a receiver, trustee or similar official has been
appointed.
"Dollars" and "$" means dollars in lawful currency of the United States of
------- -
America.
"Domestic Credit Party" means any Credit Party which is incorporated or
---------------------
organized under the laws of any State of the United States or the District of
Columbia.
"Domestic Subsidiary" means any Subsidiary which is incorporated or
-------------------
organized under the laws of any State of the United States or the District of
Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender; and
-----------------
(iii) any other Person approved by the Administrative Agent and, unless an Event
of Default has occurred and is continuing at the time any assignment is effected
in accordance with Section 11.3, the Borrower (such approval by the
Administrative Agent or the Borrower not to be unreasonably withheld or delayed
and such approval to be deemed given by the Borrower if no objection is received
by the assigning Lender and the Administrative Agent from the Borrower within
two Business Days after notice of such proposed assignment has been provided by
the assigning Lender to the Borrower); provided, however, that neither the
-------- -------
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all lawful and applicable federal,
------------------
state, local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises, licenses
and other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of Materials of Environmental
Concern into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of Materials of Environmental Concern.
"Equity Transaction" means, with respect to any member of the Consolidated
------------------
Group, any issuance or sale of shares of its capital stock or other equity
interest, other
8
than an issuance (i) in connection with a conversion of debt securities to
equity, (ii) in connection with exercise by a present or former employee,
officer or director under a stock incentive plan, stock option plan or other
equity-based compensation plan or arrangement and (iii) of the capital stock of
the Borrower in connection with a Permitted Acquisition.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with the
---------------
Borrower within the meaning of Section 4001(a)(14) of ERISA, or is a member of a
group which includes the Borrower and which is treated as a single employer
under Sections 414(b) or (c) of the Internal Revenue Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of a
-----------
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA); (ii) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section 4001(a)(2) of ERISA),
or the termination of a Multiple Employer Plan; (iii) the distribution of a
notice of intent to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (iv) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section 4042 of
ERISA; (v) any event or condition which could reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; (vi) the complete or partial
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan;
(vii) the conditions for imposition of a lien under Section 302(f) of ERISA
against the Borrower or any ERISA Affiliate exist with respect to any Plan; or
(viii) the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means any Loan that bears interest at a rate based upon
---------------
the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest Period
---------------
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the quotient
obtained by dividing (a) the Interbank Offered Rate for such Eurodollar Loan for
such Interest Period by (b) 1 minus the Eurodollar Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the maximum rate at
------------------------------
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) by member banks of the Federal Reserve System
against "Eurocurrency liabilities" (as such term is used in
9
Regulation D). Without limiting the effect of the foregoing, the Eurodollar
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (i) any category of liabilities which
includes deposits by reference to which the Eurodollar Rate is to be determined,
or (ii) any category of extensions of credit or other assets which include
Eurodollar Loans. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve Requirement.
"Event of Default" shall have the meaning assigned to such term in Section
----------------
9.1.
"Executive Officer" of any Person means any of the chief executive officer,
-----------------
chief operating officer, president, chief accounting officer, vice president,
chief financial officer or treasurer of such Person.
"Existing Letters of Credit" means those Letters of Credit outstanding on
--------------------------
the Closing Date and identified on Schedule 2.6(b).
---------------
"Extension of Credit" means, as to any Lender, the making of, or
-------------------
participation in, a Loan by such Lender (including Continuations and Conversions
thereof) or the issuance or extension of, or participation in, a Letter of
Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
--------
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by the Administrative Agent.
"Fees" means all fees payable pursuant to Section 3.5.
----
"Foreign Credit Party" means a Credit Party which is not a Domestic Credit
--------------------
Party.
"Foreign Subsidiary" means a Subsidiary which is not a Domestic Subsidiary.
------------------
"Funded Debt" means, with respect to any Person, without duplication, (i)
-----------
the principal amount of all obligations of such Person for borrowed money, (ii)
the principal amount of all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (iii) the principal amount of all purchase money Indebtedness
(including for purposes hereof, indebtedness and obligations in respect of
conditional sale or title retention arrangements described in clause (c) of the
definition of "Indebtedness" and obligations in respect of the deferred
10
purchase price of property or services described in clause (d) of the definition
of "Indebtedness") of such Person, including without limitation the principal
portion of all obligations of such Person under Capital Leases, (iv) the
principal amount of all Support Obligations of such Person with respect to
Funded Debt of another Person, (v) the maximum available amount of all standby
letters of credit (other than performance letters of credit) or acceptances
issued or created for the account of such Person, (vi) the principal amount of
all Funded Debt of another Person secured by a Lien on any Property of such
Person, whether or not such Funded Debt has been assumed, provided that for
--------
purposes hereof the amount of such Funded Debt shall be limited to the amount of
such Funded Debt as to which there is recourse to such Person or the fair market
value of the property which is subject to the Lien, if less, (vii) the
outstanding attributed principal amount under any Securitization Transaction,
(viii) the principal balance outstanding under Synthetic Leases and (ix) the
maximum amount of all contingent obligations (including, without limitation,
obligations to make earn-out payments) of such Person incurred in connection
with Permitted Acquisitions and Acquisitions consummated prior to the Closing
Date. The Funded Debt of any Person shall include the Funded Debt of any
partnership or joint venture in which such Person is a general partner or joint
venturer, but only to the extent to which there is recourse to such Person for
the payment of such Funded Debt.
"GAAP" means generally accepted accounting principles in the United States
----
applied on a consistent basis and subject to the terms of Section 1.3.
"Governmental Authority" means any Federal, state, local or foreign court
----------------------
or governmental agency, authority, instrumentality or regulatory body.
"Guaranteed Obligations" means, without duplication, (i) all of the
----------------------
obligations of the Borrower to the Lenders (including the Issuing Lender) and
the Administrative Agent, whenever arising, under this Credit Agreement, the
Notes or any of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a Bankruptcy Event with respect to any
Credit Party, regardless of whether such interest is an allowed claim under the
Bankruptcy Code) and (ii) all liabilities and obligations, whenever arising,
owing from the Borrower to any Lender, or any affiliate of a Lender, arising
under any Hedging Agreement relating to the Obligations.
"Guarantors" means each Person identified as a "Guarantor" on the signature
----------
pages hereto and each other Person which may hereafter become a Guarantor by
execution of a Joinder Agreement, together with their successors and permitted
assigns, and "Guarantor " means any one of them.
---------
"Healthcare Spin-Off" means the spin-off or other disposition of the
-------------------
Borrower's healthcare services division.
"Hedging Agreements" means any interest rate protection agreement or
------------------
foreign currency exchange agreement.
11
"Indebtedness" means, with respect to any Person, without
------------
duplication, (a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations
or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations of such
Person issued or assumed as the deferred purchase price of Property
or services purchased by such Person (other than trade debt incurred
in the ordinary course of business and due within six months of the
incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements,
(f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all
Support Obligations of such Person with respect to Indebtedness of
another Person, (h) the principal portion of all obligations of such
Person under Capital Leases, (i) all obligations of such Person
under Hedging Agreements, (j) the maximum amount of all standby
letters of credit issued or bankers' acceptances facilities created
for the account of such Person and, without duplication, all drafts
drawn thereunder (to the extent unreimbursed), (k) all preferred
Capital Stock issued by such Person and which by the terms thereof
could be (at the request of the holders thereof or otherwise)
subject to mandatory sinking fund payments, redemption or other
acceleration (other than as a result of a Change of Control or an
Asset Disposition that does not in fact result in a redemption of
such preferred Capital Stock) at any time during the term of the
Credit Agreement, (l) the principal portion of all obligations of
such Person under Synthetic Leases, (m) the Indebtedness of any
partnership or unincorporated joint venture in which such Person is
a general partner or a joint venturer, (n) with respect to any
member of the Consolidated Group, the outstanding attributed
principal amount under any Securitization Transaction and (o) the
maximum amount of all contingent obligations (including, without
limitation, obligations to make earn-out payments) of such Person
incurred in connection with Permitted Acquisitions and Acquisitions
consummated prior to the Closing Date.
"Interbank Offered Rate" means, for any Eurodollar Loan for
----------------------
any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Dow Xxxxx
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If
for any reason such rate is not available, the term "Interbank
Offered Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, 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
12
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Payment Date" means (i) as to any Base Rate Loan and
----------------------
any Swingline Loan, the last day of each March, June, September and
December, and the Termination Date, and (ii) as to any Eurodollar
Loan, the last day of each Interest Period for such Loan, the date
of repayment of principal of such Loan and the Termination Date, and
in addition where the applicable Interest Period is more than three
months, then also on the date three months from the beginning of the
Interest Period, and each three months thereafter. If an Interest
Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding
Business Day.
"Interest Period" means, as to any Eurodollar Loan, a period
---------------
of one, two, three or six months' duration, as the Borrower may
elect, commencing in each case on the date of the borrowing
(including Conversions, Continuations and renewals); provided,
however, (A) if any Interest Period would end on a day which is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except where the next succeeding Business
Day falls in the next succeeding calendar month, then on the next
preceding Business Day), (B) no Interest Period shall extend beyond
the Termination Date, and (C) where an Interest Period begins on a
day for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such Interest
Period shall end on the last day of such calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
---------------------
1986, as amended, and any successor statute thereto, as interpreted
by the rules and regulations issued thereunder, in each case as in
effect from time to time. References to sections of the Internal
Revenue Code shall be construed also to refer to any successor
sections.
"Internet Spin-Off" means, with respect to the Borrower's
-----------------
interactive marketing business, any of (a) the creation of a
tracking stock to reflect the performance thereof, (b) the spin-off
thereof or (c) the other disposition thereof.
"Investment" in any Person means (a) the acquisition (whether
----------
for cash, property, services, assumption of Indebtedness, securities
or otherwise) of Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other
securities of such other Person, (b) any deposit with, or advance,
loan or other extension of credit to, such Person (other than
deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without
limitation, any Support Obligations (including any support for a
letter of credit issued on behalf of such Person) incurred for the
benefit of such Person, but excluding any Restricted Payment to such
Person.
"Issuing Lender" means Bank of America.
--------------
13
"Joinder Agreement" means a Joinder Agreement substantially in
-----------------
the form of Schedule 7.12 hereto, executed and delivered by a
Domestic Subsidiary in accordance with the provisions of Section
7.12.
"Lenders" means each of the Persons identified as a "lender"
-------
on the signature pages hereto, and their successors and assigns.
"Letter of Credit" means any Existing Letter of Credit and any
----------------
standby letter of credit issued by the Issuing Lender for the
account of the Borrower in accordance with the terms of Section
2.1(b).
"Licenses" means all licenses, permits and other grants of
--------
authority obtained or required to be obtained from any Governmental
Authorities in connection with the management or operation of the
business of the members of the Consolidated Group or the ownership,
lease, license or use of any Property of the members of the
Consolidated Group.
"Lien" means any mortgage, pledge, hypothecation, assignment,
----
deposit arrangement, security interest, encumbrance, lien (statutory
or otherwise), preference, priority or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any financing or similar statement
or notice filed under the Uniform Commercial Code as adopted and in
effect in the relevant jurisdiction or other similar recording or
notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or the
---- -----
Swingline Loans, and the Base Rate Loans, Eurodollar Loans and Prime
Rate Swingline Loans comprising such Loans.
"LOC Commitment" means the commitment of the Issuing Lender to
--------------
issue Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount and the commitment of the
Lenders to purchase participation interests in the LOC Obligations
up to their respective Revolving Commitment Percentage as provided
in Section 2.6(b).
"LOC Committed Amount" shall have the meaning assigned to such
--------------------
term in Section 2.1(b).
"LOC Documents" means, with respect to any Letter of Credit,
-------------
such Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and any
agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Letter of Credit)
governing or providing for (i) the rights and obligations of the
parties concerned or at risk or (ii) any collateral security for
such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
---------------
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then
14
outstanding, assuming compliance with all requirements for drawings
referred to in such Letters of Credit plus (ii) the aggregate amount
----
of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on
-----------------------
(i) the condition (financial or otherwise), operations, business,
assets or liabilities of the Consolidated Group taken as a whole,
(ii) the ability of any Credit Party to perform any material
obligation under the Credit Documents to which it is a party or
(iii) the material rights and remedies of the Administrative Agent
and the Lenders under the Credit Documents.
"Material Subsidiary" means any Wholly-Owned Subsidiary which
-------------------
constitutes more than five percent (5%) of the consolidated assets
of the Consolidated Group as of the end of the immediately preceding
fiscal quarter or generates more than five percent (5%) of the
consolidated revenues of the Consolidated Group for the period of
four consecutive fiscal quarters ending as of the end of the
immediately preceding fiscal quarter.
"Materials of Environmental Concern" means any gasoline or
----------------------------------
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
-------
successor or assignee of the business of such company in the
business of rating securities.
"Multiemployer Plan" means a Plan which is a "multiemployer
------------------
plan" as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a
----------------------
Multiemployer Plan) which the Borrower or any ERISA Affiliate and at
least one employer other than the Borrower or any ERISA Affiliate
are contributing sponsors.
"Non-Guarantor Subsidiary" shall have the meaning assigned to
------------------------
such term in Section 7.12.
"Note" or "Notes" means any of the Revolving Notes.
----- -------
"Notice of Borrowing" means a written notice of borrowing in
-------------------
substantially the form of Schedule 2.2(a)(i), as required by Section
------------------
2.2(a)(i) and Section 2.2(a)(iii).
"Notice of Continuation/Conversion" means the written notice
---------------------------------
of Continuation or Conversion in substantially the form of Schedule
--------
3.2, as required by Section 3.2.
---
"Obligations" means, collectively, the Revolving Loans, the
-----------
Swingline Loans and the LOC Obligations.
15
"Operating Lease" means, as applied to any Person, any lease
---------------
(including, without limitation, leases which may be terminated by the lessee at
any time) of any Property which is not a Capital Lease other than any such lease
in which that Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in Section
-----------
3.11.
"Participation Interest" means the purchase by a Lender of a
----------------------
participation in LOC Obligations as provided in Section 2.6(b), in Swingline
Loans as provided in Section 2.7 and in Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means any Acquisition by a member of the
---------------------
Consolidated Group, provided that (i) consideration paid is not greater than the
fair market value thereof, (ii) the Person or Property which is the subject of
such Acquisition shall be in the same or similar line of business as the members
of the Consolidated Group which are parties thereto, (iii) in the case of a
merger or consolidation, and in other cases where appropriate, the board of
directors or other governing body of the other Person which is the subject of
the transaction of merger or consolidation shall have approved such Acquisition,
(iv) no Default or Event of Default shall exist immediately after giving effect
to such Acquisition, (v) the Borrower shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect
to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in
compliance with all of the covenants set forth in Section 7.11, (vi) if the
Acquisition involves an interest in a partnership and a requirement that a
member of the Consolidated Group be a general partner, the general partner shall
be a newly formed special purpose Subsidiary of the Borrower, (vii) the Credit
Parties shall, and shall cause the party which is the subject of the Acquisition
to, take such actions as may be necessary for compliance with the provisions of
Sections 7.12, and (viii) the consideration (including cash and non-cash
consideration, any assumption of Indebtedness and the maximum amount of any
contingent payment (including, without limitation, earn-out payments), but
excluding consideration consisting of any Capital Stock of the Borrower issued
to the seller of the Capital Stock or Property acquired in such Acquisition)
paid in connection with any Acquisition (or series of related Acquisitions)
shall not exceed $75,000,000.
"Permitted Investments" means Investments which are (i) cash and Cash
---------------------
Equivalents; (ii) accounts receivable of a member of the Consolidated Group
created, acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) Investments
consisting of Capital Stock, obligations, securities or other Property received
in settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors; (iv) Investments existing as of the Closing
Date and set forth in Schedule 8.6; (v) advances or loans to directors, officers
------------
and employees that do not exceed $5,000,000 in the aggregate at any one time
outstanding for all members of the Consolidated Group; (vi) advances or loans to
16
customers and suppliers in the ordinary course of business that do not exceed
$10,000,000 in the aggregate at any one time outstanding for all members of the
Consolidated Group; (vii) Investments by members of the Consolidated Group in
their Subsidiaries and Affiliates existing on the Closing Date, (viii)
Investments by members of the Consolidated Group in and to Domestic Credit
Parties, (ix) Investments which constitute Permitted Acquisitions, (x) seller
financing notes in an aggregate amount not to exceed $15 million at any time
acquired in connection with Asset Dispositions, and (xi) Investments of a nature
not contemplated in the foregoing subsections in an amount not to exceed
$15,000,000 in the aggregate at any time outstanding.
"Permitted Liens" means:
---------------
(i) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or Liens for
taxes being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established (and
as to which the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens imposed by
law or pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts not
--------
yet due and payable or, if due and payable, are unfiled and no other action has
been taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(iii) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by any member of the Consolidated Group in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(iv) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall, within 30
--------
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days after the
expiration of any such stay;
(v) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of the
encumbered Property for its intended purposes;
(vi) Liens on Property of any Person securing Indebtedness
(including Capital Leases and Synthetic Leases) of such Person to the extent
permitted under Section 8.1(c),
17
provided that any such Lien attaches only to the Property financed or leased and
--------
such Lien attaches concurrently with or within 90 days after the acquisition
thereof;
(vii) leases or subleases granted to others not interfering in any
material respect with the business of any member of the Consolidated Group;
(viii) any interest or 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
Credit Agreement;
(ix) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Liens deemed to exist in connection with Investments in
repurchase agreements which constitute Permitted Investments;
(xi) normal and customary rights of setoff upon deposits of cash
in favor of banks or other depository institutions;
(xii) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(xiii) Liens on Property of any Person securing Indebtednessof such
Person to the extent permitted under Section 8.1(h); and
(xiv) Liens existing as of the Closing Date and set forth on
Schedule 6.8; provided that (a) no such Lien shall at any time be extended to or
------------ --------
cover any Property other than the Property subject thereto on the Closing Date
and (b) the principal amount of the Indebtedness secured by such Liens shall not
be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing.
"Person" means any individual, partnership, joint venture, firm,
------
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3)
----
of ERISA) which is subject to Title IV of ERISA and with respect to which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" within
the meaning of Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by Bank of America as its prime rate in effect at its
principal office in Charlotte, North Carolina, with each change in the Prime
Rate being effective on the date such change is publicly announced as effective
(it being understood and agreed that the Prime Rate is a reference rate used by
Bank of America in determining interest rates on certain loans and is
18
not intended to be the lowest rate of interest charged on any extension of
credit by Bank of America to any debtor).
"Prime Rate Swingline Loans" means any Swingline Loan that bears
--------------------------
interest at a rate based upon the Prime Rate.
"Pro Forma Basis" means, for purposes of calculating (utilizing the
---------------
principles set forth in the second paragraph of Section 1.3) the applicable
pricing level under the definition of "Applicable Percentage" and determining
compliance with each of the financial covenants set forth in Section 7.11, that
any transaction shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent fiscal quarter end preceding
the date of such transaction with respect to which the Administrative Agent has
received the Required Financial Information. As used herein, "transaction" shall
-----------
mean (i) any merger or consolidation as referred to in Section 8.4, (ii) any
Asset Disposition as referred to in Section 8.5, (iii) any Acquisition as
referred to in the definition of "Permitted Acquisition" or (iv) any Restricted
---------------------
Payment as referred to in Section 8.8. In connection with any calculation of the
financial covenants set forth in Section 7.11 upon giving effect to a
transaction on a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any
Asset Disposition referred to in Section 8.5, (1) income statement
items (whether positive or negative) attributable to the Property
disposed of in such Asset Disposition shall be excluded and (2) any
Indebtedness which is retired in connection with such Asset
Disposition shall be excluded and deemed to have been retired as of
the first day of the applicable period; and
(B) for purposes of any such calculation in respect of any
merger or consolidation referred to in Section 8.4 or any
Acquisition referred to in the definition of "Permitted
---------
Acquisition", (1) any Indebtedness incurred by any member of the
-----------
Consolidated Group in connection with such transaction (x) shall be
deemed to have been incurred as of the first day of the applicable
period and (y) if such Indebtedness has a floating or formula rate,
shall have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate which
is or would be in effect with respect to such Indebtedness as at the
relevant date of determination, and (2) income statement items
(whether positive or negative) attributable to the Property acquired
in such transaction or to the Acquisition comprising such
transaction, as applicable, shall be included beginning as of the
first day of the applicable period.
"Pro Forma Compliance Certificate" means a certificate of an
--------------------------------
Executive Officer of the Borrower delivered to the Administrative Agent in
connection with (i) any merger or consolidation referred to in Section 8.4, (ii)
any Asset Disposition referred to in Section 8.5, (iii) any Acquisition referred
to in the definition of "Permitted Acquisition" or (iv) any Restricted Payment
---------------------
as referred to in Section 8.8, as applicable, and containing reasonably detailed
calculations, upon giving effect to the applicable transaction on a Pro Forma
Basis, of the Consolidated Interest Coverage Ratio and the Consolidated Total
19
Leverage Ratio as of the most recent fiscal quarter end preceding the date of
the applicable transaction with respect to which the Administrative Agent shall
have received the Required Financial Information.
"Property" means any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Rate Determination Date" shall have the meaning assigned to such
-----------------------
term in the definition of "Applicable Percentage".
"Register" shall have the meaning assigned to such term in Section
--------
11.3(c).
"Registration Statement" means the Registration Statement of the
----------------------
Borrower on Form S-4, initially filed with the Securities and Exhange Commission
on June 28, 1999, as amended by Amendment No. 1 thereto filed with the
Securities and Exchange Commission on August 10, 1999.
"Regulation D, O, T, U, or X" means Regulation D, O, T, U or X,
---------------------------
respectively, of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof.
"Reportable Event" means any of the events set forth in Section
----------------
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
"Required Financial Information" means the annual and quarterly
------------------------------
compliance certificates and related financial statements and information
required by the provisions of Sections 7.1(a), (b) and (c), as referenced in the
definition of "Applicable Percentage".
"Required Lenders" means, at any time, Lenders having more than
----------------
fifty percent (50%) of the aggregate Commitments, or if the Commitments have
been terminated, Lenders having more than fifty percent (50%) of the aggregate
principal amount of the Obligations outstanding (taking into account in each
case Participation Interests or obligation to participate therein); provided
--------
that the Commitments of, and outstanding principal amount of Obligations (taking
into account Participation Interests therein) owing to, a Defaulting Lender
shall be excluded for purposes hereof in making a determination of Required
Lenders.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule, regulation or ordinance (including, without
limitation, Environmental Laws) or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material Property is subject.
"Restricted Payment" means (i) any dividend or other payment or
------------------
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of any member of
20
the Consolidated Group, now or hereafter outstanding (including without
limitation any payment in connection with any dissolution, merger, consolidation
or disposition involving any member of the Consolidated Group), or to the
holders, in their capacity as such, of any shares of any class of Capital Stock
of any member of the Consolidated Group, now or hereafter outstanding (other
than dividends or distributions payable in the same class of Capital Stock of
the applicable Person or dividends or distributions payable to any Credit Party
(directly or indirectly through Subsidiaries)), (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of Capital Stock of any member of the
Consolidated Group, now or hereafter outstanding, and (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of any member of
the Consolidated Group, now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding of up to such Lender's Revolving Commitment
Percentage of the Aggregate Revolving Committed Amount.
"Revolving Commitment Percentage" means, for each Lender, a fraction
-------------------------------
(expressed as a percentage) the numerator of which is the Revolving Committed
Amount of such Lender at such time and the denominator of which is the Aggregate
Revolving Committed Amount at such time. The initial Revolving Commitment
Percentage of each Lender is set out on Schedule 2.1.
------------
"Revolving Committed Amount" means, with respect to each Lender, the
--------------------------
amount of such Lender's Revolving Commitment as specified in Schedule 2.1, as
------------
such amount may be reduced from time to time in accordance with the provisions
hereof. The initial Revolving Committed Amount of each Lender is set out on
Schedule 2.1.
------------
"Revolving Loans" shall have the meaning assigned to such term in
---------------
Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes of
-------------- ---------------
the Borrower in favor of each of the Lenders evidencing the Revolving Loans and
Swingline Loans in substantially the form attached as Schedule 2.5, individually
------------
or collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
---
McGraw Hill Companies, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
"Sale and Leaseback Transaction" means any arrangement pursuant to
------------------------------
which any member of the Consolidated Group, directly or indirectly, becomes
liable as lessee, guarantor or other surety with respect to any lease, whether
an Operating Lease or a Capital Lease, of any Property (a) which such member of
the Consolidated
21
Group has sold or transferred (or is to sell or transfer) to a Person which is
not a member of the Consolidated Group or (b) which such member of the
Consolidated Group intends to use for substantially the same purpose as any
other Property which has been sold or transferred (or is to be sold or
transferred) by such member of the Consolidated Group to another Person which is
not a member of the Consolidated Group in connection with such lease.
"Securities Exchange Act" means the Securities Exchange Act of 1934.
-----------------------
"Securitization Transaction" means any financing transaction or
--------------------------
series of financing transactions that have been or may be entered into by a
member of the Consolidated Group pursuant to which such member of the
Consolidated Group may sell, convey or otherwise transfer to (i) a Subsidiary or
affiliate (a "Securitization Subsidiary"), or (ii) any other Person, or may
-------------------------
grant a security interest in, any accounts receivable, notes receivable, rights
to future lease payments or residuals or other similar rights to payment (the
"Securitization Receivables") (whether such Securitization Receivables are then
--------------------------
existing or arising in the future) of such member of the Consolidated Group, and
any assets related thereto, including without limitation, all security interests
in merchandise or services financed thereby, the proceeds of such Securitization
Receivables, and other assets which are customarily sold or in respect of which
security interests are customarily granted in connection with securitization
transactions involving such assets.
"Single Employer Plan" means any Plan which is covered by Title IV
--------------------
of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Standby Letter of Credit Fee" shall have the meaning assigned to
----------------------------
such term in Section 3.5(b)(i).
"Subordinated Debt" means any Indebtedness of a member of the
-----------------
Consolidated Group which by its terms is expressly subordinated in right of
payment to the prior payment of the loans and obligations under the Credit
Agreement and the other Credit Documents on the terms and conditions and
evidenced by documentation satisfactory to the Administrative Agent and the
Required Lenders.
"Subsidiary" means, as to any Person at any time, (a) any
----------
corporation more than 50% of whose Capital Stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the directors
of such corporation (irrespective of whether or not at such time, any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at such time owned by such Person directly
or indirectly through Subsidiaries, and (b) any partnership, association, joint
venture or other entity of which such Person directly or indirectly through
Subsidiaries owns at such time more than 50% of the Capital Stock.
"Support Obligations" means, with respect to any Person, without
-------------------
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including
22
without limitation any obligation, whether or not contingent, (i) to purchase
any such Indebtedness or any Property constituting security therefor, (ii) to
advance or provide funds or other support for the payment or purchase of any
such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase Property, securities or services primarily
for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Support Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Support Obligation is made.
"Swingline Commitment" means the commitment of the Swingline Lender
--------------------
to make Swingline Loans in an aggregate principal amount at any time outstanding
up to the Swingline Committed Amount and the commitment of the Lenders to
purchase participation interests in the Swingline Loans up to their respective
Revolving Commitment Percentage as provided in Section 2.1(c), as such amounts
may be reduced from time to time in accordance with the provisions hereof.
"Swingline Committed Amount" shall have the meaning assigned to such
--------------------------
term in Section 2.1(c).
"Swingline Lender" means Bank of America.
----------------
"Swingline Loan" means a swingline revolving loan made by the
--------------
Swingline Lender pursuant to the provisions of Section 2.1(c).
"Synthetic Lease" means any synthetic lease, tax retention operating
---------------
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease under GAAP.
"Taxes" shall have the meaning assigned to such term in Section
-----
3.11.
"Termination Date" means the earlier of (i) August 27, 2003 or such
----------------
later date as to which all of the Lenders may in their sole discretion by
written consent agree or (ii) the date on which the Commitments terminate in
accordance with the provisions of this Credit Agreement.
"Voting Stock" means, with respect to any Person, Capital Stock
------------
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
23
"Wholly Owned Subsidiary" of any Person means any Subsidiary 100% of
-----------------------
whose Voting Stock is at the time owned by such Person directly or
indirectly through other Wholly Owned Subsidiaries.
"Year 2000 Compliant" shall have the meaning assigned to such term
-------------------
in Section 6.17.
1.2 Computation of Time Periods.
---------------------------
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 Accounting Terms.
----------------
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the annual audited financial statements referenced in Section
6.1(i)); provided, however, if (a) the Borrower shall object to determining such
-------- -------
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Administrative Agent or the Required Lenders shall so object in writing
within 60 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Credit Parties to the Lenders as to which no such
objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree that, for
purposes of all calculations made under the financial covenants set forth in
Section 7.11 (including without limitation for purposes of the definitions of
"Applicable Percentage" and "Pro Forma Basis"), (i) in connection with any Asset
Disposition referred to in Section 8.5, (A) income statement items (whether
positive or negative) attributable to the Property disposed of shall be excluded
to the extent relating to any period occurring prior to the date of such
transaction and (B) Indebtedness which is retired shall be excluded and deemed
to have been retired as of the first day of the applicable period and (ii) in
connection with any merger or consolidation referred to in Section 8.4 or any
Acquisition referred to in the definition of "Permitted Acquisition", (A) income
---------------------
statement items attributable to the Person or Property acquired shall, to the
extent not otherwise included in such income statement items for the members of
the Consolidated Group in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.1, be included to the extent relating to any period
applicable in such calculations, (B) Indebtedness of the Person or Property
acquired shall be deemed to have been incurred as of the first day of the
applicable period and (C) pro forma adjustments may be included to the extent
that such adjustments would be permitted under GAAP and give effect to items
that are (x) directly
24
attributable to such transaction, (y) expected to have a continuing impact on
the Consolidated Group and (z) factually supportable.
SECTION 2
CREDIT FACILITIES
2.1 Commitments.
-----------
(a) Revolving Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, each Lender severally agrees to make revolving
loans (the "Revolving Loans") in Dollars to the Borrower in the amount of such
---------------
Lender's Revolving Commitment Percentage of such Revolving Loans for the
purposes hereinafter set forth; provided that (i) with regard to the Lenders
--------
collectively, the aggregate principal amount of Obligations at any time shall
not exceed ONE HUNDRED NINETY-FIVE MILLION DOLLARS ($195,000,000) (as such
amount may be reduced from time to time in accordance with the provisions
hereof, the "Aggregate Revolving Committed Amount") and (ii) with regard to each
------------------------------------
Lender individually, such Lender's Revolving Commitment Percentage of
Obligations at any time shall not exceed such Lender's Revolving Committed
Amount. Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Letter of Credit Commitment. During the Commitment Period, subject to
---------------------------
the terms and conditions hereof and of the LOC Documents, if any, and such other
terms and conditions which the Issuing Lender may reasonably require, the
Issuing Lender shall issue, and the Lenders shall participate severally in, such
Letters of Credit in Dollars on a sight basis as the Borrower may request, in
form acceptable to the Issuing Lender, for the purposes hereinafter set forth;
provided that (i) the aggregate amount of LOC Obligations shall not exceed TEN
--------
MILLION DOLLARS ($10,000,000) at any time (as such amount may be reduced from
time to time in accordance with the provisions hereof, the "LOC Committed
-------------
Amount"), (ii) with regard to the Lenders collectively, the aggregate principal
------
amount of Obligations at any time shall not exceed the Aggregate Revolving
Committed Amount and (iii) with regard to each Lender individually, such
Lender's Revolving Commitment Percentage of Obligations at any time shall not
exceed such Lender's Revolving Committed Amount. Letters of Credit issued
hereunder shall have an expiry date not more than one year from the date of
issuance or extension, and may not extend beyond the date five (5) Business Days
prior to the Termination Date.
(c) Swingline Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, the Swingline Lender agrees to make certain
revolving loans (the "Swingline Loans") in Dollars to the Borrower; provided
--------------- --------
that (i) the aggregate principal amount of Swingline Loans shall not exceed TEN
MILLION DOLLARS ($10,000,000) (as such amount may be reduced from time to time
in accordance with the provisions hereof, the "Swingline Committed Amount"),
--------------------------
(ii) with regard to the Lenders collectively, the aggregate principal amount of
Obligations at any time shall not exceed the Aggregate Revolving Committed
Amount and (iii) with regard to each Lender individually, such Lender's
Revolving Commitment
25
Percentage of Obligations at any time shall not exceed such Lender's Revolving
Committed Amount. Swingline Loans shall be made as Prime Rate Swingline Loans
and may be repaid and reborrowed in accordance with the provisions hereof.
2.2 Method of Borrowing.
-------------------
(a) Notice of Request for Extensions of Credit. The Borrower shall
------------------------------------------
request an Extension of Credit hereunder by written notice (or telephone notice
promptly confirmed in writing) as follows:
(i) Revolving Loans. In the case of Revolving Loans, to the
---------------
Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day prior to the date of the requested borrowing in
the case of Base Rate Loans, and on the third Business Day prior to the
date of the requested borrowing in the case of Eurodollar Loans. Each such
request for borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, Eurodollar Loans or a combination thereof, and if Eurodollar Loans
are requested, the Interest Period(s) therefor. A form of Notice of
Borrowing is attached as Schedule 2.2(a)(i). The Administrative Agent
shall give notice to each Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.2(a)(i), the contents thereof and
-----------------
each such Lender's share of any borrowing to be made pursuant thereto.
(ii) Letters of Credit. In the case of Letters of Credit, to the
-----------------
Issuing Lender with a copy 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 requested issuance or extension (or such shorter
period as may be agreed by the Issuing Lender). Each such request for
issuance or extension of a Letter of Credit shall be irrevocable and shall
specify, among other things, (A) that a Letter of Credit is requested, (B)
the date of the requested issuance or extension, (C) the type, amount,
expiry date and terms on which the Letter of Credit is to be issued or
extended, and (D) the beneficiary. A form of Notice of Request for Letter
of Credit is attached as Schedule 2.2(a)(ii).
-------------------
(iii) Swingline Loans. In the case of Swingline Loans, to the
---------------
Swingline Lender not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day of the requested borrowing. Each such request
for borrowing shall be irrevocable and shall specify (A) that a Swingline
Loan is requested, (B) the date of the requested borrowing (which shall be
a Business Day), (C) the aggregate principal amount to be borrowed, and
(D) the maturity requested therefor. A form of Notice of Borrowing is
attached as Schedule 2.2(a)(i). Each Swingline Loan shall have a maturity
------------------
date as the Borrower may request and the Swingline Lender may agree.
(b) Minimum Amounts. Each Revolving Loan advance shall be in a minimum
---------------
principal amount of $5,000,000, in the case of Eurodollar Loans, or $1,000,000
(or the remaining Committed Amount, if less), in the case of Base Rate Loans,
and integral multiples of $250,000
26
in excess thereof. Each Swingline Loan advance shall be in a minimum principal
amount of $500,000 and integral multiples of $100,000 in excess thereof.
(c) Information Not Provided. If in connection with any such request for
------------------------
a Revolving Loan, the Borrower shall fail to specify (i) an applicable Interest
Period in the case of a Eurodollar Loan, the Borrower shall be deemed to have
requested an Interest Period of one month, or (ii) the type of loan requested,
the Borrower shall be deemed to have requested a Base Rate Loan.
(d) Maximum Number of Eurodollar Loans. In connection with any request
----------------------------------
for a Revolving Loan, the Revolving Loans may be comprised of no more than ten
(10) Eurodollar Loans outstanding at any time. For purposes hereof, Eurodollar
Loans with separate or different Interest Periods will be considered as separate
Eurodollar Loans even if their Interest Periods expire on the same date.
2.3 Interest.
--------
Subject to Section 3.1, the Loans hereunder shall bear interest at a per
annum rate, payable in arrears on each applicable Interest Payment Date (or at
such other times as may be specified herein), as follows:
(a) Base Rate Loans. During such periods as the Revolving Loans
---------------
shall be comprised of Base Rate Loans, the Loans shall bear interest at
the Adjusted Base Rate;
(b) Eurodollar Loans. During such periods as the Revolving Loans
----------------
shall be comprised of Eurodollar Loans, the Loans shall bear interest at
the Adjusted Eurodollar Rate; and
(c) Prime Rate Swingline Loans. Swingline Loans shall bear interest
--------------------------
at the Prime Rate plus the Applicable Percentage for Base Rate Loans.
2.4 Repayment.
---------
(a) Revolving Loans. The principal amount of all Revolving Loans
---------------
shall be due and payable in full on the Termination Date.
(b) Swingline Loans. The principal amount of all Swingline Loans
---------------
shall be due and payable on the earlier of (A) the maturity date agreed to
by the Swingline Lender and the Borrower with respect to such Loan, and
(B) the Termination Date.
2.5 Notes.
-----
The Revolving Loans and Swingline Loans shall be evidenced by the
Revolving Notes.
2.6 Additional Provisions relating to Letters of Credit.
---------------------------------------------------
27
(a) Reports. The Issuing Lender will provide to the Administrative Agent
-------
at least monthly, and more frequently upon request, a detailed summary report on
all Letters of Credit and the activity thereon, in form and substance acceptable
to the Administrative Agent. In addition, the Issuing Lender will provide to the
Administrative Agent for dissemination to the Lenders (i) upon the issuance or
amendment of a Letter of Credit, a detailed summary report on such Letter of
Credit, including, among other things, the Credit Party for whose account the
Letter of Credit is issued, the beneficiary, the face amount, and the expiry
date, and (ii) at least quarterly, and more frequently upon request, a detailed
summary report on all Letters of Credit and the activity thereon, including,
among other things, the Credit Party for whose account the Letter of Credit is
issued, the beneficiary, the face amount, and the expiry date. The Issuing
Lender will provide copies of the Letters of Credit to the Administrative Agent
and the Lenders promptly upon request.
(b) Participation. Each Lender, with respect to the Existing Letters of
-------------
Credit, hereby purchases a participation interest in such Existing Letters of
Credit, and with respect to Letters of Credit issued on or after the Closing
Date, upon issuance of a Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the Issuing Lender in such Letter of
Credit and the obligations arising thereunder, in each case in an amount equal
to its pro rata share of the obligations under such Letter of Credit (based on
the respective Revolving Commitment Percentages of the Lenders) and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and be obligated to pay to the Issuing Lender therefor and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Lender's participation in
any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit, each Lender
shall pay to the Issuing Lender its pro rata share of such unreimbursed drawing
in same day funds on the day of notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each Lender to so reimburse the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as hereinafter
provided.
(c) Reimbursement. In the event of any drawing under any Letter of Credit,
-------------
the Issuing Lender will promptly notify the Borrower. Unless the Borrower shall
immediately notify the Issuing Lender that the Borrower intends to otherwise
reimburse the Issuing Lender for such drawing, the Borrower shall be deemed to
have requested that the Lenders make a Revolving Loan in the amount of the
drawing as provided in subsection (d) hereof on the related Letter of Credit,
the proceeds of which will be used to satisfy the related reimbursement
obligations. The Borrower promises to reimburse the Issuing Lender on the day of
drawing under any Letter of Credit (either with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds. If the Borrower shall fail
to reimburse the Issuing Lender as provided hereinabove, the unreimbursed amount
of such drawing shall bear interest at a per annum rate equal to the Adjusted
Base Rate plus two percent (2%). The Borrower's reimbursement obligations
hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of setoff, counterclaim or defense to payment the
Borrower may claim or have against the Issuing Lender, the Administrative Agent,
the Lenders, the beneficiary of the Letter of Credit drawn upon or any other
Person, including
28
without limitation any defense based on any failure of the Borrower or any other
Credit Party to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will promptly
notify the other Lenders of the amount of any unreimbursed drawing and each
Lender shall promptly pay to the Administrative Agent for the account of the
Issuing Lender in Dollars and in immediately available funds, the amount of such
Lender's Revolving Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M. (Charlotte,
North Carolina time) otherwise such payment shall be made at or before 12:00
Noon (Charlotte, North Carolina time) on the Business Day next succeeding the
day such notice is received. If such Lender does not pay such amount to the
Issuing Lender in full upon such request, such Lender shall, on demand, pay to
the Administrative Agent for the account of the Issuing Lender interest on the
unpaid amount during the period from the date of such drawing until such Lender
pays such amount to the Issuing Lender in full at a rate per annum equal to, if
paid within two (2) Business Days of the date that such Lender is required to
make payments of such amount pursuant to the preceding sentence, the Federal
Funds Rate and thereafter at a rate equal to the Base Rate. Each Lender's
obligation to make such payment to the Issuing Lender, and the right of the
Issuing Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the existence
of a Default or Event of Default or the acceleration of the obligations of the
Borrower hereunder and shall be made without any offset, abatement, withholding
or reduction whatsoever. Simultaneously with the making of each such payment by
a Lender to the Issuing Lender, such Lender shall, automatically and without any
further action on the part of the Issuing Lender or such Lender, acquire a
participation in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest thereon
and in the related LOC Documents, and shall have a claim against the Borrower
with respect thereto.
(d) Repayment with Revolving Loans. On any day on which the Borrower shall
------------------------------
have requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Administrative Agent shall
give notice to the Lenders that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan advance comprised of Base Rate Loans
(or Eurodollar Loans to the extent the Borrower has complied with the procedures
of Section 2.2(a)(i) with respect thereto) shall be immediately made to the
Borrower by all Lenders (notwithstanding any termination of the Commitments
pursuant to Section 9.2) pro rata based on the respective Revolving Commitment
Percentages of the Lenders (determined before giving effect to any termination
of the Commitments pursuant to Section 9.2) and the proceeds thereof shall be
paid directly to the Issuing Lender for application to the respective LOC
Obligations. Each such Lender hereby irrevocably agrees to make its pro rata
share of each such Revolving Loan immediately upon any such request or deemed
request in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (i) the amount of such borrowing may not comply with
---------------
the minimum amount for advances of Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 5.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure for any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
29
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any Credit Party), then each
such Lender hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Issuing Lender such participation in the outstanding LOC Obligations as shall be
necessary to cause each such Lender to share in such LOC Obligations ratably
(based upon the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
9.2)), provided that in the event such payment is not made on the day of
drawing, such Lender shall pay in addition to the Issuing Lender interest on the
amount of its unfunded Participation Interest at a rate equal to, if paid within
two (2) Business Days of the date of drawing, the Federal Funds Rate, and
thereafter at the Base Rate.
(e) Designation of other Credit Parties as Account Parties.
------------------------------------------------------
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.2(a)(ii) hereof, a Letter of Credit
issued hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Credit Party other than the Borrower,
provided that notwithstanding such statement, the Borrower shall be the actual
account party for all purposes of this Credit Agreement for such Letter of
Credit and such statement shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(f) Renewal, Extension. The renewal or extension of any Letter of Credit
------------------
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender may have the Letters
-----------------------------
of Credit be subject to The Uniform Customs and Practice for Documentary Credits
(the "UCP") or the International Standby Practices 1998 (the "ISP98"), in either
case as published as of the date of issue by the International Chamber of
Commerce, in which case the UCP or the ISP98, as applicable, may be incorporated
therein and deemed in all respects to be a part thereof.
(h) Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
(i) In addition to its other obligations under this Section 2.6, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called
"Government Acts").
---------------
30
(ii) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Lender shall not be responsible: (A) for
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) for errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (D) for any
loss or delay in the transmission or otherwise of any document required in order
to make a drawing under a Letter of Credit or of the proceeds thereof; and (E)
for any consequences arising from causes beyond the control of the Issuing
Lender, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Issuing Lender's rights or
powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Issuing Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Issuing
Lender under any resulting liability to the Borrower or any other Credit Party.
It is the intention of the parties that this Credit Agreement shall be construed
and applied to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Borrower (on behalf of itself and each of the other Credit
Parties), including, without limitation, any and all Government Acts. The
Issuing Lender shall not, in any way, be liable for any failure by the Issuing
Lender or anyone else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause beyond the control of the Issuing
Lender.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d) above. The
obligations of the Borrower under this subsection (h) shall survive the
termination of this Credit Agreement. No act or omissions of any current or
prior beneficiary of a Letter of Credit shall in any way affect or impair the
rights of the Issuing Lender to enforce any right, power or benefit under this
Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (h), the Borrower shall have no obligation to indemnify the Issuing
Lender in respect of any liability incurred by the Issuing Lender (A) arising
solely out of the gross negligence or willful misconduct of the Issuing Lender,
as determined by a court of competent jurisdiction, or (B) caused by the Issuing
Lender's failure to pay under any Letter of Credit after presentation to it of a
request strictly complying with the terms and conditions of such Letter of
Credit, as determined by a court of competent jurisdiction, unless such payment
is prohibited by any law, regulation, court order or decree.
31
(i) Responsibility of Issuing Lender. It is expressly understood and agreed
--------------------------------
that the obligations of the Issuing Lender hereunder to the Lenders are only
those expressly set forth in this Credit Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set forth in Section
5.2 have been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however, that nothing
-------- -------
set forth in this Section 2.6 shall be deemed to prejudice the right of any
Lender to recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this Section 2.6 in the event that it
is determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit constituted gross negligence or willful misconduct on the
part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict between this
---------------------------
Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
2.7 Additional Provisions relating to Swingline Loans.
-------------------------------------------------
The Swingline Lender may, at any time, in its sole discretion, by written
notice to the Borrower and the Lenders, demand repayment of its Swingline Loans
by way of a Revolving Loan advance, in which case the Borrower shall be deemed
to have requested a Revolving Loan advance comprised solely of Base Rate Loans
in the amount of such Swingline Loans; provided, however, that any such demand
-------- -------
shall be deemed to have been given one Business Day prior to the Termination
Date and on the date of the occurrence of any Event of Default described in
Section 9.1 and upon acceleration of the indebtedness hereunder and the exercise
of remedies in accordance with the provisions of Section 9.2. Each Lender
hereby irrevocably agrees to make its Revolving Commitment Percentage of each
such Revolving Loan in the amount, in the manner and on the date specified in
the preceding sentence notwithstanding (I) the amount of such borrowing may not
---------------
comply with the minimum amount for advances of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified in Section 5.2 are
then satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving Loan to be made by
the time otherwise required hereunder, (V) whether the date of such borrowing is
a date on which Revolving Loans are otherwise permitted to be made hereunder or
(VI) any termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other Credit Party), then
each Lender hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Swingline Lender such Participation Interests in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in such Swingline Loans
ratably based upon its Revolving Commitment Percentage of the Aggregate
Revolving Committed Amount (determined before giving effect to any termination
of the Commitments pursuant to Section 3.4), provided that (A) all interest
--------
payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective Participation Interest is funded and
(B) at the time any purchase of Participation Interests pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay to the
Swingline
32
Lender, to the extent not paid to the Swingline Lender by the Borrower in
accordance with the terms of Section 2.4(b), interest on the principal amount of
Participation Interests purchased for each day from and including the day upon
which such borrowing would otherwise have occurred to but excluding the date of
payment for such Participation Interests, at the rate equal to the Federal Funds
Rate.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
----------------------------------------------
3.1 Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of Default,
(i) the principal of and, to the extent permitted by law, interest on the Loans
and any other amounts owing hereunder or under the other Credit Documents shall
bear interest, payable on demand, at a per annum rate 2% greater than the rate
which would otherwise be applicable (or if no rate is applicable, whether in
respect of interest, fees or other amounts, then the Adjusted Base Rate plus 2%)
----
and (ii) the Standby Letter of Credit Fee shall accrue at a per annum rate 2%
greater than the rate which would otherwise be applicable.
3.2 Extension and Conversion.
------------------------
The Borrower shall have the option, on any Business Day, to extend existing
Loans into a subsequent permissible Interest Period or to convert Loans into
Loans of another interest rate type; provided, however, that (i) except as
-------- -------
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
or extended as Eurodollar Loans for new Interest Periods only on the last day of
the Interest Period applicable thereto, (ii) without the consent of the Required
Lenders, Eurodollar Loans may be extended, and Base Rate Loans may be converted
into Eurodollar Loans, only if the conditions precedent set forth in Section 5.2
are satisfied on the date of Continuation or Conversion, (iii) Loans extended
as, or converted into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" and shall be in such minimum amounts as provided
---------------
in Section 2.2(b), (iv) no more than ten (10) Eurodollar Loans which comprise
Revolving Loans shall be outstanding hereunder at any time (it being understood
that, for purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, Continuations and Conversions may, in accordance with
the provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period) and (v) any
request for Continuation or Conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of one month. Each such Continuation or Conversion shall be effected by
the Borrower by giving a Notice of Extension/Conversion (or telephonic notice
promptly confirmed in writing) to the office of the Administrative Agent
specified in Section 11.1, or at such other office as the Administrative Agent
may designate in writing, prior to 11:00 A.M. (Charlotte, North Carolina time)
on the Business Day of, in the case of the Conversion of a Eurodollar Loan into
a Base Rate Loan, and on the third Business Day prior to, in the case of the
Continuation of a Eurodollar Loan as, or Conversion of a Base Rate Loan into, a
Eurodollar Loan, the date of the
33
proposed Continuation or Conversion, specifying the date of the proposed
Continuation or Conversion, the Loans to be so extended or converted, the types
of Loans into which such Loans are to be converted and, if appropriate, the
applicable Interest Periods with respect thereto. Each request for Continuation
or Conversion shall be irrevocable and shall constitute a representation and
warranty by the Borrower of the matters specified in subsections (a), (b), (c),
(d) and (e) of Section 5.2. In the event the Borrower fails to request
Continuation or Conversion of any Eurodollar Loan in accordance with this
Section, or any such Conversion or Continuation is not permitted or required by
this Section, then such Eurodollar Loan shall be automatically converted into a
Base Rate Loan at the end of the Interest Period applicable thereto. The
Administrative Agent shall give each Lender notice as promptly as practicable of
any such proposed Continuation or Conversion affecting any Loan.
3.3 Prepayments.
-----------
(a) Voluntary Prepayments. The Loans may be repaid in whole or in part
---------------------
without premium or penalty; provided that (i) Eurodollar Loans may be prepaid
--------
only upon three (3) Business Days' prior written notice to the Administrative
Agent and must be accompanied by payment of any amounts owing under Section
3.12, and (ii) partial prepayments shall be minimum principal amounts of
$5,000,000, in the case of Eurodollar Loans, and $1,000,000, in the case of Base
Rate Loans, and in integral multiples of $250,000 in excess thereof.
(b) Mandatory Prepayments. If at any time, (i) the aggregate principal
---------------------
amount of Obligations shall exceed the Aggregate Revolving Committed Amount,
(ii) the aggregate amount of LOC Obligations shall exceed the LOC Committed
Amount or (iii) the aggregate principal amount of Swingline Loans shall exceed
the Swingline Committed Amount, the Borrower shall immediately make payment on
the Revolving Loans, on the Swingline Loans and/or to a cash collateral account
in respect of the LOC Obligations, in an amount sufficient to eliminate the
excess.
(c) Application. Unless otherwise specified by the Borrower, prepayments
-----------
on the Obligations shall be applied first to Prime Rate Swingline Loans, then to
Base Rate Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
3.4 Reduction and Termination of Commitments.
----------------------------------------
(a) Voluntary Reduction of Commitments. The Commitments may be terminated
----------------------------------
or permanently reduced in whole or in part upon three (3) Business Days' prior
written notice to the Administrative Agent, provided that (i) after giving
--------
effect to any voluntary reduction the aggregate amount of Obligations shall not
exceed the Aggregate Revolving Committed Amount, as reduced, and (ii) partial
reductions shall be in a minimum principal amount of $5,000,000, and in integral
multiples of $1,000,000 in excess thereof.
(b) Termination of Commitments. The Commitments hereunder shall terminate
--------------------------
on the Termination Date.
34
3.5 Fees.
----
(a) Commitment Fee. In consideration of the Revolving Commitments
--------------
hereunder, the Borrower agrees to pay to the Administrative Agent for the
ratable benefit of the Lenders a commitment fee (the "Commitment Fee") for the
--------------
period from the Closing Date to the Termination Date equal to (i) during any
period that the unused amount of the Aggregate Revolving Committed Amount is
greater than fifty percent (50%) of the Aggregate Revolving Committed Amount,
the Applicable Percentage per annum on the average daily unused amount of the
Aggregate Revolving Committed Amount for the applicable period and (ii) during
any period that the unused amount of the Aggregate Revolving Committed Amount is
less than or equal to fifty percent (50%) of the Aggregate Revolving Committed
Amount, the sum of the Applicable Percentage plus twenty-five basis points
(0.25%) per annum on the average daily unused amount of the Aggregate Revolving
Committed Amount for the applicable period. The Commitment Fee shall be payable
quarterly in arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or a portion thereof) beginning
with the first such date to occur after the Closing Date and on the Termination
Date. For purposes of computation of the Commitment Fee, Swingline Loans shall
not be counted toward or considered usage under the Aggregate Revolving
Committed Amount.
(b) Letter of Credit Fees.
---------------------
(i) Standby Letter of Credit Issuance Fee. In consideration of the
-------------------------------------
issuance of standby Letters of Credit hereunder, the Borrower promises to
pay to the Administrative Agent for the account of each Lender a fee (the
"Standby Letter of Credit Fee") on such Lender's Revolving Commitment
----------------------------
Percentage of the average daily maximum amount available to be drawn under
each such standby Letter of Credit computed at a per annum rate for each
day from the date of issuance to and including the date of expiration equal
to the Applicable Percentage. The Standby Letter of Credit Fee shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a portion
thereof) beginning with the first such date to occur after the Closing Date
and on the Termination Date.
(ii) Issuing Lender Fees. In addition to the Standby Letter of Credit
-------------------
Fee, the Borrower promises to pay to the Administrative Agent for the
account of the Issuing Lender without sharing by the other Lenders (i) a
letter of credit fronting fee of one-eighth of one percent (0.125%) on the
average daily maximum amount available to be drawn under each Letter of
Credit computed at a per annum rate for each day from the date of issuance
to the date of expiration and (ii) the customary charges from time to time
of the Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such
Letters of Credit. The fronting fee shall be payable upon the issuance of
each Letter of Credit and the customary charges shall be payable upon
demand by the Issuing Lender.
(c) Administrative Fees. The Borrower agrees to pay to the Administrative
-------------------
Agent, for its own account, the fees referred to in the Administrative Agent's
Fee Letter (the "Administrative Agent's Fees").
---------------------------
35
3.6 Capital Adequacy.
----------------
If any Lender has determined, after the date hereof, that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's (including, for purposes hereof, the parent company of such Lender)
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's policies with respect to capital adequacy), then, upon notice from such
Lender to the Borrower, the Borrower shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction. Such notice shall be accompanied by a statement as to the amount of
such compensation and include a reasonably detailed summary of the basis for
such demand with reasonably detailed calculations. Each determination by any
such Lender of amounts owing under this Section shall, absent manifest error, be
conclusive and binding on the parties hereto.
3.7 Limitation on Eurodollar Loans.
------------------------------
If on or prior to the first day of any Interest Period for any Eurodollar
Loan:
(a) the Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the Eurodollar Rate
will not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, Continue Eurodollar Loans, or to
Convert Base Rate Loans into Eurodollar Loans.
3.8 Illegality.
----------
Notwithstanding any other provision of this Credit Agreement, in the event
that it becomes unlawful for any Lender (or its Applicable Lending Office) to
make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain, and
fund Eurodollar Loans (in which case the provisions of Section 3.10 shall be
applicable).
36
3.9 Requirements of Law.
-------------------
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Eurodollar
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of, such Lender
(or its Applicable Lending Office), including the Commitment of such Lender
hereunder; or
(ii) shall impose on such Lender (or its Applicable Lending Office)
or the London interbank market any other condition affecting this Credit
Agreement or its Notes or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Administrative Agent), suspend the obligation of such Lender
to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into
Eurodollar Loans, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 3.10 shall be
applicable); provided that such suspension shall not affect the right of such
--------
Lender to receive the compensation so requested. Each Lender shall promptly
notify the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming compensation under this
Section 3.9 shall furnish to the Borrower and the Administrative Agent a
statement setting forth the additional amount or amounts to be paid to it
hereunder (including a reasonably detailed summary of the basis for such amounts
with reasonably detailed calculations) which shall be conclusive in the absence
of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
3.10 Treatment of Affected Loans.
---------------------------
If the obligation of any Lender to make any Eurodollar Loan or to Continue,
or to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant
to Section 3.8 or 3.9 hereof, such Lender's Eurodollar Loans shall be
automatically Converted into Base Rate Loans on the last
37
day(s) of the then current Interest Period(s) for such Eurodollar Loans (or, in
the case of a Conversion required by Section 3.8 hereof, on such earlier date as
such Lender may specify to the Borrower with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 3.8 or 3.9 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 3.10 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.
3.11 Taxes.
-----
(a) Any and all payments by any Credit Party to or for the account of any
Lender (whether or not a signatory hereof) or the Administrative Agent hereunder
or under any other Credit Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent, taxes
---------
imposed on its income or gross receipts, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Administrative Agent (as the case may be) is organized or
conducts business, or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings, and
liabilities being hereinafter referred to as "Taxes"). If any Credit Party shall
-----
be required by law to deduct or withhold any Taxes from or in respect of any sum
payable under this Credit Agreement or any other Credit Document to any Lender
or the Administrative Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under this
Section 3.11) such Lender or the Administrative Agent receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such
Credit Party shall make such deductions and withholdings, (iii) such Credit
Party shall pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) such
Credit Party shall furnish to the
38
Administrative Agent, at its address referred to in Section 11.1, the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Credit Agreement or
any other Credit Document or from the execution or delivery of, or otherwise
with respect to, this Credit Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto,
except with respect to any Lender or the Administrative Agent, as the case may
be, for such liability arising from such Lender's or the Administrative Agent's,
as the case may be, gross negligence or willful misconduct.
(d) Each Lender that is not a United States person under Section
7701(a)(30) of the Internal Revenue Code, on or prior to the date of its
execution and delivery of this Credit Agreement in the case of each Lender
listed on the signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces to zero
the rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Credit Agreement is effectively connected
with the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, (iii) any other form or certificate
required by any taxing authority (including any certificate required by Sections
871(h) and 881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from tax on payments pursuant to this Credit Agreement
or any of the other Credit Documents and/or (iv) any other forms or documents
relating to the status of such Lender reasonably requested by the Borrower.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Administrative Agent with the appropriate form pursuant to
Section 3.11(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), then, notwithstanding any other provision of this
Section 3.11, such Lender shall not be entitled to additional payment or
indemnification under Section 3.11(a), 3.11(b) or 3.11(c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender, which is
-------- -------
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
39
(f) If any Credit Party is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 3.11, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
applicable Credit Party shall furnish to the Administrative Agent the original
or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the Credit
Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 3.11 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
3.12 Compensation.
------------
Upon the request of any Lender, the Borrower shall pay to such Lender such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for
any reason (including, without limitation, (i) in connection with any
assignment by Bank of America pursuant to Section 11.3(b) as part of the
primary syndication of the Loans during the 90-day period immediately
following the Closing Date and (ii) the acceleration of the Loans pursuant
to Section 9.2) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section 5
to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Loan
on the date for such borrowing, Conversion, Continuation, or prepayment
specified in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the period from the date of such prepayment or of such failure to borrow,
Convert or Continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, Convert or Continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this
40
Section 3.12 shall survive the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder.
3.13 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein:
(a) Loans and Letters of Credit. Each Revolving Loan advance, each
---------------------------
payment or prepayment of principal of any Revolving Loan (other than
Swingline Loans) or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Revolving Loans or
reimbursement obligations arising from drawings under Letters of Credit,
each payment of Commitment Fees, each payment of the Standby Letter of
Credit Fee, each reduction of the Aggregate Revolving Committed Amount and
each conversion or extension of any Revolving Loan (other than Swingline
Loans), shall be allocated pro rata among the Lenders in accordance with
the respective Revolving Commitment Percentages.
(b) Advances. No Lender shall be responsible for the failure or
--------
delay by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
-------- -------
fulfill its obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any requested borrowing that
such Lender does not intend to make available to the Administrative Agent
its ratable share of such borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of such borrowing, and
the Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the Administrative Agent
shall be able to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount
is recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for the applicable borrowing
pursuant to the Notice of Borrowing and (ii) from a Lender, if paid within
two (2) Business Days of the date such amount was made available by the
Administrative Agent to the Borrower, the Federal Funds Rate and thereafter
at a rate equal to the Base Rate
3.14 Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Lender
41
under this Credit Agreement through the exercise of a right of setoff, banker's
lien or counterclaim, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
in excess of its pro rata share of such payment as provided for in this Credit
Agreement, such Lender shall promptly purchase from the other Lenders a
Participation Interest in such Loans, LOC Obligations and other obligations in
such amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Lenders share such payment in accordance with
their respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained by
such Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise be
restored, each Lender which shall have shared the benefit of such payment shall,
by repurchase of a Participation Interest theretofore sold, return its share of
that benefit (together with its share of any accrued interest payable with
respect thereto) to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing such a
Participation Interest may, to the fullest extent permitted by law, exercise all
rights of payment, including setoff, banker's lien or counterclaim, with respect
to such Participation Interest as fully as if such Lender were a holder of such
Loan, LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender or the Administrative Agent shall fail to remit to the Administrative
Agent or any other Lender an amount payable by such Lender or the Administrative
Agent to the Administrative Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Administrative Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Etc.
---------------------------
(a) Generally. Except as otherwise specifically provided herein, all
---------
payments hereunder shall be made to the Administrative Agent in Dollars in
immediately available funds, without setoff, deduction, counterclaim or
withholding of any kind, at the Administrative Agent's office specified in
Section 11.1 not later than 2:00 P.M. (Charlotte, North Carolina time) on the
date when due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Administrative Agent may (but
shall not be obligated to) debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Borrower or any other
Credit Party maintained with the Administrative Agent (with notice to the
Borrower or such other Credit Party). The Borrower shall, at the time it makes
any payment under this Credit Agreement, specify to the Administrative Agent the
Loans, LOC Obligations, Fees, interest or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it fails
so to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall distribute such payment to the Lenders in
such manner as the Administrative Agent may determine to be appropriate in
respect of obligations
42
owing by the Borrower hereunder, subject to the terms of Section 3.13(a)). The
Administrative Agent will distribute such payments to such Lenders, if any such
payment is received prior to 2:00 P.M. (Charlotte, North Carolina time) on a
Business Day in like funds as received prior to the end of such Business Day and
otherwise the Administrative Agent will distribute such payment to such Lenders
on the next succeeding Business Day. Whenever any payment hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to accrual of
interest and Fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on the
next preceding Business Day. Except as expressly provided otherwise herein, all
computations of interest and fees shall be made on the basis of actual number of
days elapsed over a year of 360 days. Interest shall accrue from and include the
date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
---------------------------------------------
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received on or in respect of the Obligations (or other amounts owing under the
Credit Documents in connection therewith) shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of
the Administrative Agent in connection with enforcing the rights and
remedies of the Lenders under the Credit Documents made with respect
thereto;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of
each of the Lenders hereunder in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the
Obligations owing to such Lender;
FOURTH, to the payment of all accrued interest and fees on or
in respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of
the Obligations hereunder (including the payment or cash
collateralization of the outstanding LOC Obligations);
SIXTH, to all other Obligations hereunder and other obligations
which shall have become due and payable under the Credit Documents
otherwise and not repaid pursuant to clauses "FIRST" through "SIXTH"
above; and
SEVENTH, to the payment of the surplus, if any, to the
Borrower.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) except
43
as otherwise provided, the Lenders shall receive amounts ratably in
accordance with their respective pro rata share (based on the proportion
that the then outstanding Obligations held by such Lenders bears to the
aggregate amount of Obligations then outstanding) of amounts available to
be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH"
above; and (iii) to the extent that any amounts available for distribution
pursuant to clause "FIFTH" above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (A) first, to
reimburse the Issuing Lender for any drawings under such Letters of Credit
and (B) then, following the expiration of all Letters of Credit, to all
other obligations of the types described in clauses "FOURTH" and "FIFTH"
above in the manner provided in this Section 3.15(b).
3.16 Evidence of Debt.
----------------
(a) Each Lender shall maintain an account or accounts evidencing each Loan
made by such Lender to the Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Credit Agreement. Each Lender will make reasonable efforts to maintain the
accuracy of its account or accounts and to promptly update its account or
accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of any Credit Party and each Lender's share thereof. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to subsection (b) of this Section 3.16 (and, if consistent with the
entries of the Administrative Agent, subsection (a)) shall be prima facie
evidence of the existence and amounts of the obligations of the Credit Parties
therein recorded; provided, however, that the failure of any Lender or the
-------- -------
Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Credit Parties to repay the Obligations and other amounts
owing to such Lender.
3.17 Certain Limitations.
-------------------
The provisions of Sections 3.6, 3.9 and 3.11 shall be subject to the
following:
(a) If any Lender requests compensation or indemnification from the
Borrower under Section 3.6, 3.9 or 3.11, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its applicable lending office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
44
(b) If any Lender requests compensation or indemnification from the
Borrower under Section 3.6, 3.9 or 3.11, the Borrower may, at its option, so
long as no Event of Default shall have occurred and be continuing, obtain, at
the Borrower's expense, a replacement Lender for the affected Lender. If the
Borrower elects to obtain a replacement Lender for the affected Lender, the
Borrower shall within thirty (30) after the date of such request notify the
Administrative Agent and such affected Lender of its intention to replace the
affected Lender. If the Borrower obtains a replacement Lender within sixty (60)
days following notice of its intention to do so, the affected Lender must sell
and assign its Loans and Commitments to such replacement Lender pursuant to
Section 11.3 (without giving effect to any requirement therein that the
Administrative Agent consent thereto), for an amount equal to the principal
balance of all Loans held by the affected Lender and all accrued interest and
Fees with respect thereto through the date of such sale, provided that the
--------
Borrower shall have paid to such affected Lender the compensation or
indemnification that it is entitled to receive under Section 3.6, 3.9 or 3.11
through the date of such sale and assignment. Notwithstanding the foregoing, if
the Borrower (a) fails to give notice to the Administrative Agent and the
affected Lender of its intention to replace the affected Lender within thirty
(30) days after the Lender requests compensation or indemnification, or (b)
timely gives notice to the Administrative Agent and the affected Lender of its
intention to replace such affected Lender but does not so replace such affected
Lender within sixty (60) days following such notice, then in each case the
Borrower's rights under this Section 3.17 to replace such Lender for the
particular circumstances shall terminate.
SECTION 4
GUARANTY
--------
4.1 The Guaranty.
------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each affiliate of a Lender that enters into a Hedging Agreement relating
to the Obligations, and the Administrative Agent, as hereinafter provided, as
primary obligor and not as surety, the prompt payment of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Guaranteed Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the
45
largest amount that would not render such obligations subject to avoidance under
Section 548 of the Bankruptcy Code or any comparable provisions of any
applicable state law.
4.2 Obligations Unconditional.
-------------------------
The obligations of the Guarantors under Section 4.1 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor
shall have no right of subrogation, indemnity, reimbursement or contribution
against the Borrower or any other Guarantor for amounts paid under this Section
4 until such time as the Lenders (and any affiliates of Lenders entering into
Hedging Agreements) have been paid in full in respect of all Guaranteed
Obligations, all Commitments under this Credit Agreement have been terminated
and no Person or Governmental Authority shall have any right to request any
return or reimbursement of funds from the Lenders in connection with monies
received under the Credit Documents or Hedging Agreements between any member of
the Consolidated Group and any Lender, or any affiliate of a Lender. Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following
shall not alter or impair the liability of any Guarantor hereunder which shall
remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of any of
the Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released, impaired
or exchanged in whole or in part or otherwise dealt with;
(d) any of the Guaranteed Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or
46
shall be subordinated to the claims of any Person (including, without
limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement between any member of the
Consolidated Group and any Lender, or any affiliate of a Lender, or any other
agreement or instrument referred to in the Credit Documents or such Hedging
Agreements, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
4.3 Reinstatement.
-------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
--------------------------
Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Guaranteed Obligations, except through the exercise of
rights of subrogation pursuant to Section 4.2 and through the exercise of rights
of contribution pursuant to Section 4.6.
4.5 Remedies.
--------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Guaranteed Obligations may be declared to be
forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 4.1 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Guaranteed Obligations
being deemed to have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of Section 4.1.
4.6 Rights of Contribution.
----------------------
47
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the prior payment in full to the
Administrative Agent and the Lenders of the Guaranteed Obligations, and none of
the Guarantors shall exercise any right or remedy under this Section 4.6 against
any other Guarantor until payment and satisfaction in full of all of such
Guaranteed Obligations. For purposes of this Section 4.6, (a) "Guaranteed
----------
Obligations" shall mean any obligations arising under the other provisions of
-----------
this Section 4; (b) "Excess Payment" shall mean the amount paid by any Guarantor
--------------
in excess of its Pro Rata Share of any Guaranteed Obligations; (c) "Pro Rata
--------
Share" shall mean, for any Guarantor in respect of any payment of Guaranteed
-----
Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Credit Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Credit Parties hereunder) of the Credit
Parties; provided, however, that, for purposes of calculating the Pro Rata
-------- -------
Shares of the Guarantors in respect of any payment of Guaranteed Obligations,
any Guarantor that became a Guarantor subsequent to the date of any such payment
shall be deemed to have been a Guarantor on the date of such payment and the
financial information for such Guarantor as of the date such Guarantor became a
Guarantor shall be utilized for such Guarantor in connection with such payment;
and (d) "Contribution Share" shall mean, for any Guarantor in respect of any
------------------
Excess Payment made by any other Guarantor, the ratio (expressed as a
percentage) as of the date of such Excess Payment of (i) the amount by which the
aggregate present fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Credit Parties other than the maker of such Excess Payment exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Credit
Parties) of the Credit Parties other than the maker of such Excess Payment;
provided, however, that, for purposes of calculating the Contribution Shares of
-------- -------
the Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment.
This Section 4.6 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that any Guarantor may have under
applicable law against the Borrower in respect of any payment of Guaranteed
Obligations. Notwithstanding the foregoing, all rights of contribution against
any Guarantor shall terminate from and after such time, if ever, that such
Guarantor shall be relieved of its obligations pursuant to Section 8.4.
48
4.7 Guarantee of Payment; Continuing Guarantee.
------------------------------------------
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 5
CONDITIONS
----------
5.1 Closing Conditions.
------------------
The obligation of the Lenders to enter into this Credit Agreement and to
make the initial Extensions of Credit shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the Administrative
-------------------------
Agent of: (i) multiple counterparts of this Credit Agreement and (ii) a
Revolving Note for each Lender, in each case executed by a duly authorized
officer of each party thereto and in each case conforming to the
requirements of this Credit Agreement.
(b) Legal Opinions. Receipt by the Administrative Agent of
--------------
multiple counterparts of opinions of counsel for the Credit Parties
relating to the Credit Documents and the transactions contemplated
therein, in form and substance satisfactory to the Administrative Agent
and the Lenders, and including, among other things, opinions regarding
enforceability of the Credit Documents and the perfection of the security
interests created thereby.
(c) Financial Information. Receipt by the Lenders of such
---------------------
financial information regarding the members of the Consolidated Group as
may be requested by, and in each case in form and substance satisfactory
to, the Administrative Agent and the Lenders.
(d) Absence of Legal Proceedings. There shall not exist any
----------------------------
action, suit, investigation or proceeding pending in any court or before
any arbitrator or Governmental Authority which could reasonably be
expected to have a Material Adverse Effect.
(e) Corporate Documents. Receipt by the Administrative Agent of
-------------------
the following (or their equivalent) for each of the Credit Parties:
(i) Charter Documents. Copies of the articles or
-----------------
certificates of incorporation or other charter documents of such
Credit Party certified to be true and complete as of a recent date
by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary or
assistant secretary of such Credit Party to be true and correct as
of the Closing Date.
49
(ii) Bylaws. A copy of the bylaws, operating agreement or
------
equivalent of such Credit Party certified by a secretary or
assistant secretary of such Credit Party to be true and correct and
in force and effect as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the board of
-----------
directors of such Credit Party approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by
a secretary or assistant secretary of such Credit Party to be true
and correct and in force and effect as of the Closing Date.
(iv) Good Standing. (A) certificates of good standing,
-------------
existence or its equivalent certified as of a recent date by the
appropriate governmental authorities of the state of incorporation
and each other state in which the failure to so qualify and be in
good standing would be reasonably likely to have a material adverse
effect on the business or operations in such state and (B)
certificates indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental taxing
authorities of the state of incorporation and each other state in
which the failure to pay corporate franchise taxes would be
reasonably likely to have a material adverse effect on the business
and operations in such state.
(v) Officer's Certificate. An officer's certificate for
---------------------
each of the Credit Parties dated as of the Closing Date
substantially in the form of Schedule 5.1(e)(v) with appropriate
------------------
insertions and attachments.
(f) Officer's Certificates. The Administrative Agent shall have
----------------------
received a certificate or certificates executed by an Executive Officer of
the Borrower as of the Closing Date, in form and substance satisfactory to
the Administrative Agent, stating that (A) each Credit Party is in
compliance with all existing financial obligations, (B) all governmental,
shareholder and third party consents and approvals, if any, with respect
to the Credit Documents and the transactions contemplated thereby have
been obtained, (C) no action, suit, investigation or proceeding is pending
or threatened in any court or before any arbitrator or governmental
instrumentality that purports to affect any Credit Party or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding could reasonably be expected to have a
Material Adverse Effect, and (D) immediately after giving effect to the
initial Loans made and Letters of Credit issued on the Closing Date, (1)
no Default or Event of Default exists, (2) all representations and
warranties contained herein and in the other Credit Documents are true and
correct in all material respects and (3) the Credit Parties are in pro
forma compliance with each of the financial covenants set forth in Section
7.11 (assuming for purposes hereof that such financial covenants were
measured as of, and for the 12-month period ending on, such date).
(g) Corporate Structure. Receipt by the Administrative Agent of
-------------------
the corporate capital and ownership structure of the members of the
Consolidated Group.
50
(h) Fees and Expenses. Payment by the Credit Parties of all fees
-----------------
and expenses then due and payable to the Lenders and the Administrative
Agent, including, without limitation, payment to the Administrative Agent
of the fees set forth in the Administrative Agent's Fee Letter.
5.2 Conditions to all Extensions of Credit.
--------------------------------------
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations and Warranties. The representations and
------------------------------
warranties made by the Credit Parties herein and in the other Credit Documents
or which are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects on and as
of the date of such Extension of Credit as if made on and as of such date
(except for those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default
------------------------------
shall have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date unless such Default or Event of
Default shall have been waived in accordance with this Credit Agreement.
(c) Additional Conditions to Revolving Loans. If a Revolving Loan
----------------------------------------
is requested pursuant to Sections 2.1 and 2.2, all conditions set forth in
Section 2 shall have been satisfied.
(d) Additional Conditions to Letters of Credit. If the issuance
------------------------------------------
of a Letter of Credit is requested pursuant to Sections 2.1 and 2.2, all
conditions set forth in Section 2 shall have been satisfied.
(e) Additional Conditions to Swingline Loans. If a Swingline Loan
----------------------------------------
is requested pursuant to Sections 2.1 and 2.2, all conditions set forth in
Section 2 shall have been satisfied.
Each request for an Extension of Credit (including Continuations and
Conversions) and each acceptance by the Borrower of an Extension of Credit
(including Continuations and Conversions) shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a) and (b), and in (c), (d)
or (e) of this subsection have been satisfied.
51
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce the Lenders to enter into this Credit Agreement and to make the
Extensions of Credit hereunder, each of the Credit Parties hereby represents and
warrants to the Administrative Agent and to each Lender that:
6.1 Financial Condition.
-------------------
Each of the financial statements described below (copies of which have
heretofore been provided to the Administrative Agent for distribution to the
Lenders) have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all material
respects and present fairly the financial condition (including disclosure of all
material liabilities, contingent or otherwise) and results from operations of
the entities and for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments and the absence of
footnotes:
(i) the audited consolidated balance sheet of the Consolidated
Group for the fiscal year ending December 31, 1998, together with related
audited consolidated statements of income and cash flows for the fiscal
year then ending, as set forth in the Registration Statement;
(ii) the unaudited, company-prepared consolidated balance sheet of
the Consolidated Group for the fiscal quarter ending June 30, 1999,
together with related consolidated statements of income and cash flows for
the fiscal quarter then ending, as set forth in the Registration
Statement; and
(iii) after the Closing Date, the annual and quarterly financial
statements provided in accordance with Sections 7.1(a) and (b).
6.2 No Changes or Restricted Payments.
---------------------------------
Since the date of the most-recent annual audited financial statements
referenced in Section 6.1(i),
(i) for the period to the Closing Date, except as previously
disclosed in writing to the Administrative Agent and the Lenders, (A)
there have been no material sales, transfers or other dispositions of any
material part of the business or property of the members of the
Consolidated Group, nor have there been any material purchases or other
acquisitions of any business or property (including the Capital Stock of
any other person) by the members of the Consolidated Group, which are not
reflected in the annual audited or company-prepared quarterly financial
statements referenced in Section 6.1(i) and (ii) hereof, and (B) no
Restricted Payments have been declared or paid by members of the
Consolidated Group; and
52
(ii) there have been no circumstances, developments or events
relating to or affecting the members of the Consolidated Group which,
individually or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect.
6.3 Organization; Existence; Compliance with Law.
--------------------------------------------
Each of the members of the Consolidated Group (a) is duly organized,
validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has the corporate or other necessary power
and authority, and the legal right to own and operate its Property, to lease the
Property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law, except to the extent that the failure to comply therewith
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.4 Power; Authorization; Enforceable Obligations.
---------------------------------------------
Each of the Credit Parties has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate or other
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with acceptance of Extensions of Credit
or the making of the guaranties hereunder or with the execution, delivery or
performance of any Credit Documents by the Credit Parties (other than those
which have been obtained, such filings as are required by the Securities and
Exchange Commission and to fulfill other reporting requirements with
Governmental Authorities) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are necessary in
connection with the perfection of the Liens, if any, created by such Credit
Documents). Each Credit Document to which it is a party constitutes a legal,
valid and binding obligation of such Credit Party enforceable against such
Credit Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6.5 No Legal Bar.
------------
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law or any Contractual Obligation of any member of the
Consolidated Group (except those as to which waivers or consents have been
obtained and those that would not reasonably be expected to have a Material
Adverse Effect), and will not result in, or require, the creation or imposition
of any Lien on any of its respective properties or revenues pursuant to any
Requirement of Law or
53
Contractual Obligation other than the Liens, if any, arising under or
contemplated in connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a Material
Adverse Effect.
6.6 No Material Litigation and Disputes.
-----------------------------------
(a) No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the
Credit Parties, threatened by or against, any members of the Consolidated Group
or against any of their respective properties or revenues which (a) relate to
the Credit Documents or any of the transactions contemplated hereby or thereby
or (b) if adversely determined, would reasonably be expected to have a Material
Adverse Effect. Set forth on Schedule 6.6 is a summary of all claims,
------------
litigation, investigations and proceedings pending or, to the best knowledge of
the Credit Parties, threatened by or against the members of the Consolidated
Group or against any of their respective properties or revenues, and none of
such actions, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(b) No default exists and, to the best knowledge of the Credit Parties,
no default has been asserted, under any Contractual Obligations to which any
members of the Consolidated Group are party which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.7 No Defaults.
-----------
No Default or Event of Default has occurred and is continuing.
6.8 Ownership and Operation of Property.
-----------------------------------
Each of the members of the Consolidated Group (i) has good record and
marketable title to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien, except for
Permitted Liens, and (ii) has obtained all material licenses, permits,
franchises or other certifications, consents, approvals and authorizations,
governmental or private, necessary to the ownership of its Property and to the
conduct of its business.
54
6.9 Intellectual Property.
---------------------
Each of the members of the Consolidated Group owns, or has the legal right
to use, all United States trademarks, tradenames, copyrights, patents,
technology, know-how and processes, if any, necessary for each of them to
conduct its business as currently conducted (the "Intellectual Property") except
---------------------
for those the failure to own or have such legal right to use would not
reasonably be expected to have a Material Adverse Effect. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any Credit Party know of any such claim, and the
use of such Intellectual Property by the members of the Consolidated Group does
not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
6.10 No Burdensome Restrictions.
--------------------------
No Requirement of Law or Contractual Obligation of the members of the
Consolidated Group would reasonably be expected to have a Material Adverse
Effect.
6.11 Taxes.
-----
Each of the members of the Consolidated Group has filed or caused to be
filed all federal income tax returns and all other material tax returns which
are required to be filed and has paid (i) all amounts shown therein to be due
(including interest and penalties) and (ii) all other taxes, fees, assessments
and other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangibles taxes) owing, except for such taxes which are not
yet delinquent or as are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with GAAP have
been established unless the failure to make any such payment could give rise to
an immediate right to foreclose on a Lien securing such amounts. No tax claim
or assessment has been asserted against members of the Consolidated Group which
if adversely determined would reasonably be expected to have a Material Adverse
Effect.
6.12 ERISA
-----
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Internal
Revenue Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance with its
own terms and in material compliance with the provisions of ERISA, the Internal
Revenue Code, and any other applicable federal or state laws; and (iv) no lien
in favor of the PBGC or a Plan has arisen or is reasonably likely to arise on
account of any Plan.
55
(b) The actuarial present value of all "benefit liabilities" (as defined
in Section 4001(a)(16) of ERISA), whether or not vested, under each Single
Employer Plan, as of the last annual valuation date prior to the date on which
this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) Neither the Borrower nor any ERISA Affiliate has incurred, or, to
the best knowledge of the Credit Parties, could reasonably be expected to incur,
any withdrawal liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. Neither the Borrower nor any ERISA Affiliate would become subject
to any withdrawal liability under ERISA if any member of the Consolidated Group
or any ERISA Affiliate were to withdraw completely from all Multiemployer Plans
and Multiple Employer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. Neither the Borrower
nor any ERISA Affiliate has received any notification that any Multiemployer
Plan is in reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been terminated
(within the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the
best knowledge of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No member of the Consolidated Group nor any ERISA Affiliates has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Internal
Revenue Code apply has been administered in compliance in all material respects
of such sections.
(e) Neither the execution and delivery of this Credit Agreement nor the
consummation of the financing transactions contemplated thereunder will involve
any transaction which is subject to the prohibitions of Sections 404, 406 or 407
of ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Internal Revenue Code. The representation by the Credit Parties in
the preceding sentence is made in reliance upon and subject to the accuracy of
the Lenders' representation in Section 11.15 with respect to their source of
funds and is subject, in the event that the source of the funds used by the
Lenders in connection with this transaction is an insurance company's general
asset account, to the application of Prohibited Transaction Class Exemption 95-
60, 60 Fed. Reg. 35,925 (1995), compliance with the regulations issued under
Section 401(c)(1)(A) of ERISA, or the issuance of any other prohibited
transaction exemption or similar relief, to the effect that assets in an
insurance company's general asset account do not constitute assets of an
"employee benefit plan" within the meaning of Section 3(3) of ERISA of a "plan"
within the meaning of Section 4975(e)(1) of the Internal Revenue Code.
6.13 Governmental Regulations, Etc.
-----------------------------
(a) None of the transactions contemplated by this Credit Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of the Securities Act of 1933,
as amended, or the regulations issued pursuant thereto, or the
56
Securities Exchange Act of 1934, as amended, or regulations issued pursuant
thereto, or Regulation T, U or X. "Margin stock" within the meanings of
Regulation U does not constitute more than 25% of the value of the consolidated
assets of the Borrower and its Subsidiaries.
(b) None of the members of the Consolidated Group is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940, each as amended. In addition,
none of the members of the Consolidated Group is (i) an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended, and is not controlled by such a company, or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of any
member of the Consolidated Group is a director, executive officer or principal
shareholder of any Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O.
6.14 Subsidiaries.
------------
Set forth on Schedule 6.14 are all the Subsidiaries of the Borrower,
-------------
including the jurisdiction of organization, ownership and ownership percentages
thereof. The outstanding shares of Capital Stock shown have been validly issued,
fully paid and are non-assessable and owned free of Liens other than Permitted
Liens. The outstanding shares of Capital Stock shown are not the subject of buy-
sell, voting trust or other shareholder agreement except as identified on
Schedule 6.14.
-------------
6.15 Purpose of Extensions of Credit.
-------------------------------
The Loans will be used by the Borrower solely to (i) refinance certain
existing Indebtedness of the Borrower and (ii) finance working capital and other
general corporate purposes of the Borrower and its Subsidiaries (including, but
not limited to, Capital Expenditures, the repurchase of Capital Stock of the
Borrower and Permitted Acquisitions).
6.16 Environmental Matters.
---------------------
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or operated by
the members of the Consolidated Group (the "Subject Properties") and all
------------------
operations at the Subject Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Subject Properties or the businesses operated by the members of
the Consolidated Group (the "Businesses"), and, to the knowledge of the
----------
Borrower, there are no conditions relating to the Businesses or Subject
Properties that could give rise to liability under any applicable Environmental
Laws.
57
(b) None of the Subject Properties contains, or, to the knowledge of the
Borrower, has previously contained, any Materials of Environmental Concern at,
on or under the Subject Properties in amounts or concentrations that constitute
or constituted a violation of, or could give rise to liability under,
Environmental Laws.
(c) None of the members of the Consolidated Group has received any
written notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Subject Properties or the Businesses, nor does any member
of the Consolidated Group have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Subject Properties, or generated, treated, stored or
disposed of at, on or under any of the Subject Properties or any other location,
in each case by or on behalf any members of the Consolidated Group in violation
of, or in a manner that would be reasonably likely to give rise to liability
under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which any member of the Consolidated Group is or will be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any member of the Consolidated Group, the Subject Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Subject Properties, or arising from or
related to the operations (including, without limitation, disposal) of any
member of the Consolidated Group in connection with the Subject Properties or
otherwise in connection with the Businesses, in violation of or in amounts or in
a manner that could give rise to liability under Environmental Laws.
6.17 Year 2000 Compliance.
--------------------
The Borrower has (i) initiated a review and assessment of all areas within
its and each of its Subsidiaries' business and operations (including those
affected by suppliers, vendors and customers) that could be adversely affected
by the "Year 2000 Problem" (that is, the risk that computer applications used by
-----------------
the Borrower or any of its Subsidiaries (or suppliers, vendors and customers)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999), (ii)
developed a plan and timeline for addressing the Year 2000 Problem on a timely
basis, and (iii) to date, implemented that plan in accordance with that
timetable. Based on the foregoing, the Borrower believes that all computer
applications (including those of its suppliers, vendors and customers) that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly date-
sensitive functions for all dates before and after January 1, 2000 (that is, be
"Year 2000 Compliant"), except to the extent that a failure to do so could not
-------------------
reasonably be expected to have a Material Adverse Effect.
58
6.18 No Material Misstatements.
-------------------------
None of the information, reports, financial statements, exhibits or
schedules, taken as a whole, furnished by or on behalf of any member of the
Consolidated Group to the Administrative Agent or any Lender in connection with
the negotiation of the Credit Documents or included therein or delivered
pursuant thereto contained any material misstatement of fact or omitted to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading, provided
--------
that to the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, each of the
Credit Parties represents only that it acted in good faith and utilized
reasonable assumptions and due care in the preparation of such information,
report, financial statement, exhibit or schedule.
6.19 Labor Matters.
-------------
Except as set forth in Schedule 6.19 and as would not reasonably be
-------------
expected to have a Material Adverse Effect,
(i) There are no strikes or lockouts against any members of the
Consolidated Group pending or, to the best knowledge of the Credit
Parties, threatened;
(ii) the hours worked by and payments made to employees of the
Consolidated Group have not been in violation of the Fair Labor Standards
Act or any other applicable federal, state, local or foreign law dealing
with such matters;
(iii) all payments due from members of the Consolidated Group, or
for which any claim may be made against a member of the Consolidated
Group, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of
the respective members of the Consolidated Group; and
(iv) none of the members of the Consolidated Group is party to a
collective bargaining agreement.
6.20 Solvency.
--------
Immediately after giving effect to the initial Extensions of Credit made
on the Closing Date, (i) the fair value of the assets of each Credit Party will
exceed its debts and liabilities, subordinated, contingent or otherwise; (ii)
the present fair saleable value of the property of each Credit Party will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and mature; and (iii) each Credit
Party will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.
59
6.21 No Other Broker's Fees.
----------------------
None of the members of the Consolidated Group owes to any Person other
than the Lenders and their affiliates, or otherwise has any obligation in
respect of any finder's, broker's, investment banker's or other similar fee in
connection with the transactions contemplated in the Credit Agreement and the
other Credit Documents.
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding or any Letter of Credit is outstanding,
and until all of the Commitments hereunder shall have terminated:
7.1 Information Covenants.
---------------------
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
---------------------------
event within 90 days after the close of each fiscal year of the members of
the Consolidated Group, a consolidated balance sheet and income statement
of the members of the Consolidated Group as of the end of such fiscal
year, together with related consolidated statements changes is
shareholders' equity and of cash flows for such fiscal year, in each case
setting forth in comparative form consolidated figures for the preceding
fiscal year, all such financial information described above to be in
reasonable form and detail and audited by independent certified public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent and whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP (except
for changes with which such accountants concur) and shall not be limited
as to the scope of the audit or qualified as to the status of any member
of the Consolidated Group as a going concern or any other material
qualifications or exceptions.
(b) Quarterly Financial Statements. As soon as available, and in
------------------------------
any event within 45 days after the close of each fiscal quarter of the
members of the Consolidated Group (other than the fourth fiscal quarter,
in which case 90 days after the end thereof) a consolidated balance sheet
and income statement of the members of the Consolidated Group as of the
end of such fiscal quarter, together with related consolidated statements
of changes in shareholders' equity and of cash flows for such fiscal
quarter, in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent, and
accompanied by a certificate of an Executive Officer of the Borrower to
the effect that such quarterly
60
financial statements fairly present in all material respects the financial
condition of the members of the Consolidated Group and have been prepared
in accordance with GAAP, subject to changes resulting from audit and
normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
---------------------
financial statements provided for in Sections 7.1(a) and 7.1(b) above, a
certificate of an Executive Officer of the Borrower substantially in the
form of Schedule 7.1(c), (i) demonstrating compliance with the financial
---------------
covenants contained in Section 7.11 by calculation thereof as of the end
of each such fiscal period and (ii) stating that no Default or Event of
Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Credit
Parties propose to take with respect thereto.
(d) Annual Business Plan and Budgets. Prior to the end of each
--------------------------------
fiscal year of the Borrower, beginning with the fiscal year ending
December 31, 1999, an annual business plan and budget of the members of
the Consolidated Group containing, among other things, pro forma financial
statements for the next fiscal year.
(e) Accountant's Certificate. Within the period for delivery of
------------------------
the annual financial statements provided in Section 7.1(a), a certificate
of the accountants conducting the annual audit stating that they have
reviewed this Credit Agreement and stating further whether, in the course
of their audit, they have become aware of any Default or Event of Default
arising from the Borrower's failure to comply with the financial covenants
contained in Section 7.11 and, if any such Default or Event of Default
exists, specifying the nature and extent thereof.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of
-----------------
any other report or "management letter" submitted by independent
accountants to any member of the Consolidated Group in connection with any
annual, interim or special audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt thereof, (i)
-------
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as any
member of the Consolidated Group shall send to its shareholders or to a
holder of any Indebtedness owed by any member of the Consolidated Group in
its capacity as such a holder and (ii) upon the request of the
Administrative Agent, all reports and written information to and from the
United States Environmental Protection Agency, or any state or local
agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(h) Notices. Upon any Executive Officer of a Credit Party
-------
obtaining knowledge thereof, the Credit Parties will give written notice
to the Administrative Agent immediately of (i) the occurrence of an event
or condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose to
61
take with respect thereto, and (ii) the occurrence of any of the following
with respect to any member of the Consolidated Group (A) the pendency or
commencement of any litigation, arbitral or governmental proceeding
against such Person which is reasonably is likely to have a Material
Adverse Effect or (B) the institution of any proceedings against such
Person with respect to, or the receipt of notice by such Person of
potential liability or responsibility for violation, or alleged violation
of any federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which could reasonably be
expected to have a Material Adverse Effect.
(i) ERISA. Upon any Executive Officer of a Credit Party obtaining
-----
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent promptly (and in any event within ten Business Days)
of: (i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, an ERISA
Event; (ii) with respect to any Multiemployer Plan, the receipt of notice
as prescribed in ERISA or otherwise of any withdrawal liability assessed
against the Credit Parties or any ERISA Affiliates, or of a determination
that any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA) which could result in a liability of at
least $5,000,000; (iii) the failure to make full payment on or before the
due date (including extensions) thereof of all amounts which any member of
the Consolidated Group or any ERISA Affiliate is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum
funding standard set forth in ERISA and the Internal Revenue Code with
respect thereto which could result in a liability of at least $5,000,000;
or (iv) any change in the funding status of any Plan that could have a
Material Adverse Effect, together with a description of any such event or
condition or a copy of any such notice and a statement by an Executive
Officer of the Borrower briefly setting forth the details regarding such
event, condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Credit Parties with respect
thereto. Promptly upon request, the Credit Parties shall furnish the
Administrative Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not
limited to, copies of each annual report/return (Form 5500 series), as
well as all schedules and attachments thereto required to be filed with
the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Internal Revenue Code, respectively, for each "plan year"
(within the meaning of Section 3(39) of ERISA).
(j) Environmental.
-------------
(i) Upon the reasonable written request of the
Administrative Agent following the occurrence of any event or the
discovery of any condition which the Administrative Agent or the
Required Lenders reasonably believe has caused (or could reasonably
be expected to cause) the representations and warranties set forth
in Section 6.16 to be untrue in any material respect, the Credit
Parties will furnish or cause to be furnished to the Administrative
Agent, at the Credit Parties' expense, a report of an environmental
assessment of reasonable scope, form and depth, (including, where
appropriate, invasive soil or groundwater sampling) by a consultant
reasonably acceptable to the Administrative Agent as to the nature
and
62
extent of the presence of any Materials of Environmental Concern on
any Subject Properties (as defined in Section 6.16) and as to the
compliance by any member of the Consolidated Group with
Environmental Laws at such Subject Properties. If the Credit Parties
fail to deliver such an environmental report within seventy-five
(75) days after receipt of such written request then the
Administrative Agent may arrange for same, and the members of the
Consolidated Group hereby grant to the Administrative Agent and
their representatives access to the Subject Properties to reasonably
undertake such an assessment (including, where appropriate, invasive
soil or groundwater sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this provision
will be payable by the Credit Parties on demand.
(ii) The members of the Consolidated Group will conduct and
complete all investigations, studies, sampling, and testing and all
remedial, removal, and other actions necessary to address all
Materials of Environmental Concern on, from or affecting any of the
Subject Properties to the extent necessary to be in compliance with
all Environmental Laws and with the validly issued orders and
directives of all Governmental Authorities with jurisdiction over
such Subject Properties to the extent any failure could have a
Material Adverse Effect.
(k) Other Information. With reasonable promptness upon any such
-----------------
request, such other information regarding the business, properties or
financial condition of any member of the Consolidated Group as the
Administrative Agent or the Required Lenders may reasonably request.
7.2 Preservation of Existence and Franchises.
----------------------------------------
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.4 or Section 8.5, each
Credit Party will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority except where failure to do so could not reasonably be
expected to have a Material Adverse Effect.
7.3 Books and Records.
-----------------
Each Credit Party will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.4 Compliance with Law.
-------------------
Each Credit Party will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its Property if
noncompliance with any such law, rule, regulation, order or restriction could
have a Material Adverse Effect.
63
7.5 Payment of Taxes and Other Indebtedness.
---------------------------------------
Each Credit Party will, and will cause each of its Subsidiaries to, pay
and discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that no member of the
-------- -------
Consolidated Group shall be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which is being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established, unless the failure to make any such payment
could have a Material Adverse Effect.
7.6 Insurance.
---------
Each Credit Party will maintain with financially sound and reputable
insurance companies casualty, liability and such other insurance with such
coverage and deductibles, and in such amounts as may be consistent with prudent
business practice and in any event consistent with normal industry practice; and
furnish to the Administrative Agent, upon written request, full information as
to the insurance carried.
7.7 Maintenance of Property.
-----------------------
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.8 Performance of Obligations.
--------------------------
Each Credit Party will, and will cause each of its Subsidiaries to,
perform all of its obligations under the terms of all agreements, indentures,
mortgages, security agreements and other debt instruments to which it is a party
or by which it is bound except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
7.9 Use of Proceeds.
---------------
The Borrower will use the proceeds of Extensions of Credit solely for the
purposes set forth in Section 6.15.
64
7.10 Audits/Inspections.
------------------
Upon reasonable notice and during normal business hours, each Credit Party
will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person.
7.11 Financial Covenants.
-------------------
(a) Consolidated Total Leverage Ratio. As of the end of each fiscal
---------------------------------
quarter, the Consolidated Total Leverage Ratio shall be not greater than
2.5:1.0.
(b) Consolidated Interest Coverage Ratio. As of the end of each fiscal
------------------------------------
quarter, the Consolidated Interest Coverage Ratio shall be not less than
3.5:1.0.
(c) Consolidated Net Worth. As of the end of each fiscal quarter, the
----------------------
Consolidated Net Worth shall be not less than the sum of (i) $225 million plus
----
(ii) as of the end of such fiscal quarter and each preceding fiscal quarter to
occur after the Closing Date, an amount equal to fifty percent (50%) of
Consolidated Net Income (but not less than zero) for such fiscal quarter, such
increases to be cumulative, plus (iii) an amount equal to one hundred percent
----
(100%) of net proceeds from Equity Transactions occurring after the Closing
Date.
(d) Consolidated EBITDA. As of the end of each fiscal quarter beginning
-------------------
with the fiscal quarter ending December 31, 1999, the Consolidated EBITDA for
the period of four consecutive fiscal quarters ending as of such day shall not
be less than $80,000,000.
7.12 Additional Guarantors.
---------------------
At any time that a Wholly Owned Subsidiary which is not a Guarantor (each
a "Non-Guarantor Subsidiary") shall either:
------------------------
(i) individually, constitute more than five percent (5%) of the
consolidated assets of the Consolidated Group as of the end of the
immediately preceding fiscal quarter or generate more than five percent
(5%) of the consolidated revenues of the Consolidated Group for the period
of four consecutive fiscal quarters ending as of the end of the
immediately preceding fiscal quarter, or
(ii) collectively with all Non-Guarantor Subsidiaries, constitute
more than ten percent (10%) of the consolidated assets of the Consolidated
Group as of the end of the immediately preceding fiscal quarter or
generate more than ten percent (10%) of the
65
consolidated revenues of the Consolidated Group for the period of four
consecutive fiscal quarters ending as of the end of the immediately
preceding fiscal quarter,
then the Borrower shall (a) provide the Administrative Agent with written notice
thereof setting forth information in reasonable detail describing all of the
assets of such Non-Guarantor Subsidiary and (b) if such Person is a Domestic
Subsidiary, (i) cause such Non-Guarantor Subsidiary to execute a Joinder
Agreement in substantially the same form as Schedule 7.12 and (ii) cause such
-------------
Non-Guarantor Subsidiary to deliver such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and opinions
of counsel as the Administrative Agent may reasonably request.
7.13 Year 2000 Compliance.
--------------------
The Credit Parties will promptly notify the Administrative Agent in the
event any Credit Party discovers or determines that any computer application
(including those of its suppliers, vendors and customers) that is material to
its or any of its Subsidiaries' business and operations will not be Year 2000
Compliant, except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
SECTION 8
NEGATIVE COVENANTS
------------------
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding or any Letter of Credit is outstanding,
and until all of the Commitments hereunder shall have terminated:
8.1 Indebtedness.
------------
The Credit Parties will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing or arising under this Credit Agreement
or the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth
on Schedule 8.1, and renewals, refinancings and extensions thereof on
------------
terms and conditions not materially less favorable to such Person than
such existing Indebtedness;
(c) Indebtedness (including obligations in respect of Capital
Leases or Synthetic Leases) hereafter incurred by the Borrower or any of
its Subsidiaries to finance the purchase of fixed assets provided that (i)
--------
the total of all such Indebtedness for the Borrower and its Subsidiaries
taken together shall not exceed an aggregate principal amount of
$5,000,000 at any one time outstanding; (ii) such Indebtedness when
incurred shall not exceed the
66
purchase price of the asset(s) financed; and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(d) obligations of the Borrower or any of its Subsidiaries owing
under interest rate, commodities and foreign currency exchange protection
agreements entered into in the ordinary course of business to manage
existing or anticipated risks and not for speculative purposes;
(e) unsecured intercompany Indebtedness owing by a member of the
Consolidated Group to another member of the Consolidated Group (subject,
however, to the limitations of Section 8.6 in the case of the member of
the Consolidated Group extending the loan, advance or credit);
(f) obligations to make contingent payments (including, without
limitation, earn-out payments) incurred in connection with Permitted
Acquisitions and Acquisitions consummated prior to the Closing Date
provided that (i) the maximum amount of cash payments made in respect of
such obligations shall not exceed $5 million in the aggregate and (ii)
such obligations shall be expressly subordinated in right of payment to
the prior payment of the loans and obligations under the Credit Agreement
and the other Credit Documents on the terms and conditions and evidenced
by documentation satisfactory to the Administrative Agent;
(g) Support Obligations of any member of the Consolidated Group
with respect to any Indebtedness of any member of the Consolidated Group
permitted under this Section 8.1; and
(h) other secured Funded Debt of the Borrower and its Subsidiaries
in an aggregate outstanding principal amount of up to $5,000,000 at any
time assumed in connection with Permitted Acquisitions; and
(i) other unsecured Funded Debt of the Borrower and its
Subsidiaries in an aggregate outstanding principal amount of up to
$15,000,000 at any time.
8.2 Liens.
-----
The Credit Parties will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Property, whether now owned or after acquired, except for Permitted
Liens.
8.3 Nature of Business.
------------------
The Credit Parties will not permit any member of the Consolidated Group to
substantively alter the character or conduct of the business conducted by such
Person as of the Closing Date.
67
8.4 Merger and Consolidation, Dissolution and Acquisitions.
------------------------------------------------------
(a) No member of the Consolidated Group will enter into any transaction
of merger or consolidation, except that
(i) a Domestic Credit Party may be party to a transaction of
merger or consolidation with another Domestic Credit Party, provided that
--------
if the Borrower is a party to such transaction, it shall be the surviving
entity;
(ii) a Foreign Subsidiary may be party to a transaction of merger
or consolidation with a Subsidiary of the Borrower, provided that (A) if a
--------
Domestic Subsidiary is a party thereto, such Domestic Subsidiary shall be
the surviving entity and if such Domestic Subsidiary is not already a
Credit Party, shall take such actions as may be necessary for compliance
with the provisions of Section 7.12, and (B) if a Foreign Subsidiary is
the other party thereto, the surviving entity shall be a Foreign
Subsidiary;
(iii) a Domestic Subsidiary of the Borrower may be a party to a
transaction of merger or consolidation with a Person other than a member
of the Consolidated Group, provided that (A) the surviving entity shall be
--------
a Domestic Subsidiary of the Borrower and shall take such actions as may
be necessary for compliance with the provisions of Section 7.12, (B) no
Default or Event of Default shall exist immediately after giving effect
thereto, and (C) the transaction shall otherwise constitute a Permitted
Acquisition;
(iv) a Subsidiary of the Borrower may enter into a transaction of
merger or consolidation in connection with an Asset Disposition permitted
under Section 8.5.
(b) No member of the Consolidated Group shall make any Acquisition,
unless:
(i) in the case of an acquisition of Capital Stock of another
Person, after giving effect to such acquisition,
(A) if the acquisition is not of a controlling interest in
the subject Person such that after giving effect thereto the subject
Person will not be a Subsidiary, then the acquisition constitutes a
Permitted Investment; and
(B) if the acquisition is of a controlling interest in the
subject Person such that after giving effect thereto the subject
Person will be a Subsidiary, then the Acquisition constitutes a
Permitted Acquisition;
(ii) in the case of an acquisition of all or any substantial
portion of the Property (other than Capital Stock) of another Person, then
such Acquisition constitutes a Permitted Acquisition.
8.5 Asset Dispositions.
------------------
68
Other than the Healthcare Spin-Off and the Internet Spin-Off, the Credit
Parties will not permit any member of the Consolidated Group to make any Asset
Disposition (including, without limitation, any Sale and Leaseback Transaction),
unless
(i) the sale, lease or other disposition is to a Domestic Credit
Party; or
(ii) in all other cases, (A) at least seventy-five percent (75%)
of the consideration paid therefor shall consist of cash, Cash Equivalents
or seller financing notes (to the extent permitted by Section 8.6), (B) if
the subject transaction is a Sale and Leaseback Transaction, such
transaction shall be permitted by Section 8.11, (C) the aggregate net book
value of all assets sold, leased or otherwise disposed of shall not exceed
$30 million in any fiscal year, (D) no Default or Event of Default shall
exist immediately after giving effect thereto, and (E) the Borrower shall
have demonstrated compliance with the financial covenants hereunder on a
Pro Forma Basis after giving effect to the disposition and shall have
delivered to the Administrative Agent a Pro Forma Compliance Certificate
(including reaffirmation of the representations and warranties hereunder
as of such date before and after giving effect to such transaction) in
connection therewith.
8.6 Investments.
-----------
The Credit Parties will not permit any member of the Consolidated Group to
make or permit to exist Investments in or to any Person, except for Permitted
Investments.
8.7 Restricted Payments.
-------------------
Except for the Healthcare Spin-Off and the Internet Spin-Off, the Credit
Parties will not make, or permit any member of the Consolidated Group to make,
any Restricted Payment, unless (a) (i) no Default or Event of Default shall
exist immediately after giving effect thereto and (ii) the Borrower shall have
demonstrated compliance with the financial covenants hereunder on a Pro Forma
Basis after giving effect to the Restricted Payment and shall have delivered to
the Administrative Agent a Pro Forma Compliance Certificate (including
reaffirmation of the representations and warranties hereunder as of such date
before and after giving effect to such transaction) in connection therewith, and
(b) with respect to any payment described in clauses (ii) and (iii) of the
definition of Restricted Payment, (A) the amount of all such payments shall not
exceed $150,000,000 in the aggregate and (B) no such payment shall be made to
acquire any shares of Capital Stock (or warrants, options or other rights to
acquire Capital Stock) of Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx and their
Affiliates.
8.8 Modifications and Payments in respect of Other Funded Debt.
----------------------------------------------------------
None of the members of the Consolidated Group will
(a) After the issuance thereof, amend or modify (or permit the amendment
or modification of) the terms of any Indebtedness in a manner materially adverse
to the interests of the Lenders (including specifically shortening any maturity
or average life to maturity or
69
requiring any payment sooner than previously scheduled or increasing the
interest rate or fees applicable thereto);
(b) Amend or modify, or permit or acquiesce to the amendment or
modification (including waivers) of, any material provisions of any Subordinated
Debt, including any notes or instruments evidencing any Subordinated Debt and
any indenture or other governing instrument relating thereto, in a manner
materially adverse to the interests of the Lenders;
(c) Make any payment in contravention of the terms of any Subordinated
Debt; or
(d) Except in connection with a refinancing or refunding permitted
hereunder, make any prepayment, redemption, defeasance or acquisition for value
of (including without limitation, by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of paying when due),
or refund, refinance or exchange of any Funded Debt (other than the Indebtedness
under the Credit Documents and intercompany Indebtedness permitted hereunder)
other than regularly scheduled payments of principal and interest on such Funded
Debt.
8.9 Transactions with Affiliates.
----------------------------
The Credit Parties will not permit any member of the Consolidated Group to
enter into or permit to exist any transaction or series of transactions with any
officer, director, shareholder, Subsidiary or Affiliate of such Person other
than (a) transactions among the Credit Parties, (b) normal compensation and
reimbursement of expenses of officers and directors and (c) except as otherwise
specifically limited in this Credit Agreement, other transactions which are
entered into in the ordinary course of such Person's business on terms and
conditions substantially as favorable to such Person as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.10 Fiscal Year; Organizational Documents.
-------------------------------------
The Credit Parties will not permit any member of the Consolidated Group to
change its fiscal year or amend, modify or change its articles of incorporation
(or corporate charter or other similar organizational document) or bylaws (or
other similar document) without the prior written consent of the Required
Lenders.
8.11 Sale Leasebacks.
---------------
The Credit Parties will not permit any member of the Consolidated Group to
enter into any Sale and Leaseback Transaction unless such Sale and Leaseback
Transaction constitutes purchase money Indebtedness permitted by Section 8.1(c).
70
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
----------------
(a) Payment. Any Credit Party shall
-------
(i) default in the payment when due of any principal of any
of the Loans or of any reimbursement obligations arising from
drawings under Letters of Credit, or
(ii) default, and such default shall continue for three (3)
or more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings under
Letters of Credit, or of any Fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection herewith or
therewith; or
(b) Representations. Any representation, warranty or statement made
---------------
or deemed to be made by any Credit Party herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required
to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made or deemed to have
been made; or
(c) Covenants. Any Credit Party shall
---------
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 7.2, 7.9, 7.11,
7.12, 7.13 or 8.1 through 8.11, inclusive;
(ii) default in the due performance or observance of any
term, covenant or agreement contained in Sections 7.1(a), (b) (c) or
(d) and such default shall continue unremedied for a period of at
least 5 days after the earlier of an Executive Officer of a Credit
Party becoming aware of such default or notice thereof by the
Administrative Agent; or
(iii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b), (c)(i) or (c)(ii) of this Section 9.1)
contained in this Credit Agreement or any other Credit Document and
such default shall continue unremedied for a period of at least 30
days after the earlier of an Executive Officer of a Credit Party
becoming aware of such default or notice thereof by the
Administrative Agent; or
71
(d) Other Credit Documents. Except as a result of or in connection
----------------------
with a dissolution, merger or disposition of a Subsidiary permitted under
Section 8.4 or Section 8.5, any Credit Document shall fail to be in full
force and effect or to give the Administrative Agent and/or the Lenders
the Liens, rights, powers and privileges purported to be created thereby,
or any Credit Party shall so state in writing; or
(e) Guaranties. Except as the result of or in connection with a
----------
dissolution, merger or disposition of a Subsidiary permitted under Section
8.4 or Section 8.5, the guaranty given by any Guarantor (including any
Person which becomes a Guarantor after the Closing Date in accordance with
Section 7.12) or any provision thereof shall cease to be in full force and
effect, or any Guarantor (including any Person which becomes a Guarantor
after the Closing Date in accordance with Section 7.12) or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
---------------
to any member of the Consolidated Group; or
(g) Defaults under Other Agreements. With respect to any
-------------------------------
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $5,000,000 in the aggregate for the members of the
Consolidated Group taken as a whole, (i) any member of the Consolidated
Group shall (A) default in any payment (beyond the applicable grace period
with respect thereto, if any) with respect to any such Indebtedness, or
(B) the occurrence and continuance of a default in the observance or
performance relating to such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit, the holder or
holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (determined without regard to whether any notice or
lapse of time is required), any such Indebtedness to become due prior to
its stated maturity; or (ii) any such Indebtedness shall be declared due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
---------
against one or more of the members of the Consolidated Group involving a
liability of $5,000,000 or more in the aggregate (to the extent not paid
or fully covered by insurance provided by a carrier who has acknowledged
coverage and has the ability to perform) and any such judgments or decrees
shall not have been vacated, discharged or stayed or bonded pending appeal
within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such event
-----
or condition is reasonably likely to result in the imposition of taxes,
penalties, or other liabilities in an aggregate amount in excess of
$5,000,000: (i) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code, whether or not waived, shall exist with respect to any Plan, or any
72
lien shall arise on the assets of the Borrower or any ERISA Affiliate in
favor of the PBGC or a Plan; (ii) an ERISA Event shall occur with respect
to a Single Employer Plan, which results in the termination of such Plan
for purposes of Title IV of ERISA; (iii) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which results
in (A) the termination of such Plan for purposes of Title IV of ERISA, or
(B) the Borrower or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the meaning
of Section 4241 of ERISA), or insolvency (within the meaning of Section
4245 of ERISA) of such Plan; or (iv) any prohibited transaction (within
the meaning of Section 406 of ERISA or Section 4975 of the Internal
Revenue Code) or breach of fiduciary responsibility shall occur which
subjects the Borrower or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Internal Revenue Code, or under any agreement or other instrument pursuant
to which the Borrower or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability; or
(j) Ownership. There shall occur a Change of Control.
---------
9.2 Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Lenders
(pursuant to the voting requirements of Section 11.6) or cured to the
satisfaction of the requisite Lenders (pursuant to the voting procedures in
Section 11.6), the Administrative Agent may or, upon the direction of the
Required Lenders, shall by written notice to the Credit Parties take any of the
following actions:
(a) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued
------------
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by the Credit Parties to the
Administrative Agent and/or any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
---------------
Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be held
by the Administrative Agent, for the benefit of the Lenders, in a cash
collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
---------------------
created and existing under the Credit Documents including, without
limitation, all rights and remedies against a Guarantor and all rights of
set-off.
73
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur with respect to the Borrower, then the Commitments
shall automatically terminate and all Loans, all reimbursement obligations
arising from drawings under Letters of Credit, all accrued interest in respect
thereof, all accrued and unpaid Fees and other indebtedness or obligations owing
to the Administrative Agent and/or any of the Lenders hereunder automatically
shall immediately become due and payable without the giving of any notice or
other action by the Administrative Agent or the Lenders.
SECTION 10
AGENCY PROVISIONS
-----------------
10.1 Appointment, Powers and Immunities.
----------------------------------
Each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent under this Credit Agreement and the other Credit
Documents with such powers and discretion as are specifically delegated to the
Administrative Agent by the terms of this Credit Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Each Lender further authorizes and directs the Administrative Agent to execute
and deliver releases (or similar agreements) to give effect to the provisions of
this Credit Agreement and the other Credit Documents, including specifically,
without limitation, the provisions of Section 8.5 hereof. The Administrative
Agent (which term as used in this sentence and in Section 10.5 and the first
sentence of Section 10.6 shall include its affiliates and its own and its
affiliates' officers, directors, employees, and agents): (a) shall not have any
duties or responsibilities except those expressly set forth in this Credit
Agreement and shall not be a trustee or fiduciary for any Lender; (b) shall not
be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Credit
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Credit
Document, or any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Credit Party
or any of its Subsidiaries or Affiliates; (d) shall not be required to initiate
or conduct any litigation or collection proceedings under any Credit Document;
and (e) shall not be responsible for any action taken or omitted to be taken by
it under or in connection with any Credit Document, except for its own gross
negligence or willful misconduct. The Administrative Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The titles of Syndication Agent and Documentation Agent are
bestowed in recognition of the participation in this credit by the Syndication
Agent and the Documentation Agent, and such title shall not impose or imply any
duties or responsibilities whatsoever of the
74
Syndication Agent or the Documentation Agent, in their respective capacity as
such, to the Borrower, the Guarantors, the Administrative Agent or the Lenders.
10.2 Reliance by Administrative Agent.
--------------------------------
The Administrative Agent shall be entitled to rely upon any certification,
notice, instrument, writing, or other communication (including, without
limitation, any thereof by telephone or telecopy) believed by it to be genuine
and correct and to have been signed, sent or made by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel for any Credit Party), independent accountants, and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof unless
and until the Administrative Agent receives and accepts an Assignment and
Acceptance executed in accordance with Section 11.3(b) hereof. As to any
matters not expressly provided for by this Credit Agreement, 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 on all of the Lenders; 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 any Credit Document or applicable law or unless it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking any such action.
10.3 Defaults.
--------
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of a Default or Event of Default unless the Administrative
Agent has received written notice from a Lender or a Credit Party specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or Event of Default, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall
(subject to Section 10.2) take such action with respect to such Default or Event
of Default as shall reasonably be directed by the Required Lenders (or such
other Lenders as required by Section 11.6), provided that, unless and until the
-------- ----
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interest of the Lenders.
10.4 Rights as a Lender.
------------------
With respect to its Commitment and the Loans made by it, Bank of America
(and any successor acting as Administrative Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. Bank of
America (and any successor acting as Administrative Agent) and its affiliates
may
75
(without having to account therefor to any Lender) accept deposits from, lend
money to, make investments in, provide services to, and generally engage in any
kind of lending, trust, or other business with any Credit Party or any of its
Subsidiaries or Affiliates as if it were not acting as Administrative Agent, and
Bank of America (and any successor acting as Administrative Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or Affiliates for services in connection with this Credit
Agreement or otherwise without having to account for the same to the Lenders.
10.5 Indemnification.
---------------
The Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed under Section 11.5 hereof, but without limiting the obligations of
the Credit Parties under Section 11.5) ratably (in accordance with their
respective Revolving Commitments (or, if the Revolving Commitments have been
terminated, the outstanding Revolving Loans, Swingline Loans and Participation
Interests in Letters of Credit and Swingline Loan (including the Participation
Interests of the Issuing Lender in Letters of Credit and the Participation
Interests of the Swingline Lender in Swingline Loans)) for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees), or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) in any way relating to or arising
out of any Credit Document or the transactions contemplated thereby or any
action taken or omitted by the Administrative Agent under any Credit Document;
provided that no Lender shall be liable for any of the foregoing to the extent
--------
they arise from the gross negligence or willful misconduct of the Person to be
indemnified. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any costs or expenses payable by the Credit Parties under Section 11.5, to the
extent that the Administrative Agent is not promptly reimbursed for such costs
and expenses by the Credit Parties. The agreements in this Section 10.5 shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
------------------------------------------------------
Each Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Credit Parties and their Subsidiaries and decision to enter into this Credit
Agreement and that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under the Credit
Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition, or business of any Credit Party or any of its Subsidiaries
or Affiliates that may come into the possession of the Administrative Agent or
any of its affiliates.
76
10.7 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Credit Parties. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a commercial bank organized under the laws
of the United States having combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor, such successor shall thereupon 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 hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 10 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
SECTION 11
MISCELLANEOUS
-------------
11.1 Notices.
-------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Credit Parties and the
Administrative Agent, set forth below, and, in the case of the Lenders, set
forth on Schedule 11.1, or at such other address as such party may specify by
-------------
written notice to the other parties hereto:
if to any Credit Party:
Xxxxxx Communications, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
77
with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Administrative Agent:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxx
Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N.A.
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx
MD2-600-06-13
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
78
11.2 Right of Set-Off; Adjustments.
-----------------------------
Upon the occurrence and during the continuance of any Event of Default,
each Lender (and each of its affiliates) is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender (or any
of its affiliates) to or for the credit or the account of any Credit Party
against any and all of the obligations of such Person now or hereafter existing
under this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand under
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party after any such set-
off and application made by such Lender; provided, however, that the failure to
-------- -------
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender under this Section 11.2 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender may have.
11.3 Benefit of Agreement.
--------------------
(a) This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that none of the Credit Parties may assign or
--------
transfer any of its interests and obligations without prior written
consent of each of the Lenders; provided further that the rights of each
-------- -------
Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth in this Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Credit Agreement
(including, without limitation, all or a portion of its Loans, its Notes,
and its Commitment); provided, however, that
-------- -------
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender,
an affiliate of an existing Lender or any fund that invests in bank
loans and is advised or managed by an investment advisor to an
existing Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) or
an integral multiple of $1,000,000 in excess thereof;
(iii) any such assignment shall be of a constant, not varying,
percentage of all of the Obligations and Commitments hereunder; and
(iv) the parties to such assignment shall execute and deliver
to the Administrative Agent for its acceptance an Assignment and
Acceptance in the form of Schedule 11.3(b) hereto, together with any
----------------
Note subject to such assignment and a processing fee of $3,500.
79
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits of a
Lender hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Administrative Agent
and the Credit Parties shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not a United States person under Section 6701(a)(30) of the
Internal Revenue Code, it shall deliver to the Credit Parties and the
Administrative Agent certification as to exemption from deduction or
withholding of Taxes in accordance with Section 3.11.
(c) The Administrative Agent shall maintain at its address referred
to in Section 11.1 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 Lenders and the Commitment of, and principal amount of
the Loans owing to, each Lender from time to time (the "Register"). The
--------
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Credit Parties, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Credit Agreement.
The Register shall be available for inspection by the Credit Parties or
any Lender at any reasonable time and from time to time upon reasonable
prior notice. Any assignment of any Loans, Commitments or other
obligations shall be effective only upon an entry with respect thereto
being made in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed by
the parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Schedule 11.3(b) hereto, (i) accept such Assignment and
----------------
Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons in
all or a portion of its rights, obligations or rights and obligations
under this Credit Agreement (including all or a portion of its Commitment
or its Loans); provided, however, that (i) such Lender's obligations under
-------- -------
this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participant shall be entitled to the
benefit of the yield protection provisions contained in Sections 3.7
through 3.12, inclusive, and the right of set-off contained in Section
11.2 (provided that such participant shall not be entitled to receive a
greater amount than the Lender from who it purchased such participation
would otherwise be entitled to receive), and (iv) the Credit Parties shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Credit Agreement, and such
Lender shall retain the sole right to enforce the obligations of the
Credit Parties under the Credit Documents owing to such Lender and to
80
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal payment
date or date fixed for the payment of interest on such Loans or Notes, or
extending its Commitment).
(f) Notwithstanding any other provision set forth in this Credit
Agreement, any Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the members
of the Consolidated Group in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.14
hereof.
11.4 No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Administrative Agent or any Lender
and any of the Credit Parties shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle the
Credit Parties to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5 Expenses; Indemnification.
-------------------------
(a) The Credit Parties jointly and severally agree to pay within 30 days
upon presentation of an invoice all reasonable costs and expenses of the
Administrative Agent in connection with the syndication, preparation, execution,
delivery, administration, modification, and amendment of this Credit Agreement,
the other Credit Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent (including the reasonable cost of internal counsel)
with respect thereto and with respect to advising the Administrative Agent as to
its rights and responsibilities under the Credit Documents. The Credit Parties
further jointly and severally agree to pay within 30 days upon presentation of
an invoice all reasonable costs and expenses of the Administrative Agent and the
Lenders, if any (including, without limitation, reasonable attorneys' fees and
expenses and the reasonable cost of internal counsel), in connection with the
enforcement (whether through negotiations, legal proceedings, or otherwise) of
the Credit Documents and the other documents to be delivered thereunder.
81
(b) The Credit Parties jointly and severally agree to indemnify and hold
harmless the Administrative Agent and each Lender and each of their affiliates
and their respective officers, directors, employees, agents, and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
-----------------
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys' fees) 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, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Credit Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, 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 11.5 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any of the Credit Parties,
their respective directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Credit
Parties agree not to assert any claim against the Administrative Agent, any
Lender, any of their affiliates, or any of their respective directors, officers,
employees, attorneys, agents, and advisors, on any theory of liability, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Credit Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 11.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
11.6 Amendments, Waivers and Consents.
--------------------------------
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
-------- -------
(a) without the consent of each Lender affected thereby, neither
this Credit Agreement nor any other Credit Document may be amended to
(i) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(ii) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or Fees hereunder,
82
(iii) reduce or waive the principal amount of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(iv) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or mandatory reduction in the Commitments
shall not constitute a change in the terms of any Commitment of any
Lender),
(v) release the Borrower or, except as the result of or in
connection with a dissolution, merger or disposition of a member of
the Consolidated Group permitted under Section 8.4, any Material
Subsidiary or substantially all of the other Credit Parties from its
or their obligations under the Credit Documents,
(vi) amend, modify or waive any provision of this Section 11.6
or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15,
9.1(a), 11.2, 11.3, 11.5 or 11.9,
(vii) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders, or
(viii) consent to the assignment or transfer by the Borrower,
any Material Subsidiary or all or substantially all of the other
Credit Parties of any of its or their rights and obligations under (or
in respect of) the Credit Documents except as permitted thereby;
(b) without the consent of the Administrative Agent, no provision
of Section 10 may be amended; and
(c) without the consent of the Issuing Lender, no provision of
Section 2.1(b), 2.2(a)(ii) or 2.6 may be amended.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to
vote as such Lender sees fit on any bankruptcy reorganization plan that
affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to
allow a Credit Party to use cash collateral in the context of a bankruptcy
or insolvency proceeding.
11.7 Counterparts.
------------
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by
83
any of the parties hereto of an executed counterpart of this Credit Agreement
shall be as effective as an original executed counterpart hereof and shall be
deemed a representation that an original executed counterpart hereof will be
delivered.
11.8 Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Survival.
--------
All indemnities set forth herein, including, without limitation, in Section
2.6(h), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and delivery of
this Credit Agreement, the making of the Loans, the issuance of the Letters of
Credit, the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments hereunder, and all
representations and warranties made by the Credit Parties herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue.
------------------------------------------------
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY PROVIDED
THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Credit Agreement or any other Credit
Document may be brought in the State or Federal courts located in New York, New
York, and, by execution and delivery of this Credit Agreement, each of the
Credit Parties hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section
11.1, such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT, THE
LENDERS AND EACH OF THE CREDIT PARTIES HEREBY IRREVOCABLY
84
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.11 Severability.
------------
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
--------
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.13 Binding Effect; Termination.
---------------------------
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by each Credit Party and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of each Credit Party, the Administrative Agent and each
Lender and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding, no Letters of Credit shall be
outstanding have been irrevocably satisfied in full and all of the Commitments
hereunder shall have expired or been terminated.
11.14 Confidentiality.
---------------
The Administrative Agent and each Lender (each, a "Lending Party") agrees
-------------
to keep confidential any information furnished or made available to it by the
Credit Parties pursuant to this Credit Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
--------
such information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent, or advisor of any Lending
Party or affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Credit Agreement, (g) in connection with
any litigation to
85
which such Lending Party or any of its affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, (i) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender, (j) to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty (i) has
been approved in writing by the Borrower and (ii) agrees in a writing
enforceable by the Borrower to be bound by the provisions of this Section 11.14)
and (k) subject to provisions substantially similar to those contained in this
Section 11.14, to any actual or proposed participant or assignee.
11.15 Source of Funds.
---------------
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee benefit
plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender
has disclosed to the Borrower the name of each employee benefit plan
whose assets in such account exceed 10% of the total assets of such
account as of the date of such purchase (and, for purposes of this
subsection (b), all employee benefit plans maintained by the same
employer or employee organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets of
an insurance company's general account, such insurance company has
complied with all of the requirements of the regulations issued under
Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.16 Conflict.
--------
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
86
[Signature Page to Follow]
87
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: XXXXXX COMMUNICATIONS, INC.,
-------- a Delaware corporation
By:
-------------------------
Name:
Title:
GUARANTORS: AMERICAN STUDENT LIST CO. INC.,
---------- a __________ corporation
XXXXXX COMMUNICATIONS, INC.,
a __________ corporation
BLAU MARKETING TECHNOLOGIES, INC.,
a __________ corporation
XXXXXXXXX MARKETING GROUP, INC.,
a __________ corporation
MEDIA SYNDICATION GLOBAL, INC.,
a __________ corporation
NATIONAL SALES SERVICES, INC.,
a __________ corporation
NATURAL INTELLIGENCE, INC.,
a __________ corporation
RESPONSE MARKETING GROUP, LLC,
a __________ corporation
SAMPLING CORPORATION OF AMERICA,
a __________ corporation
XXXXXX DIRECT SERVICES, INC.,
a __________ corporation
TSUNAMI CONSULTING GROUP, INC.,
a __________ corporation
XXXXXX MARKETING SERVICES, INC.,
a __________ corporation
By:
-------------------------
Name:
Title:
of each of the foregoing Guarantors
[Signature Pages Continue]
LENDERS: BANK OF AMERICA, N.A.,
------- individually in its capacity as a
Lender and in its capacity as Administrative Agent
By:
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
---------------------------------
Name:
Title:
CRESTAR BANK
By:
---------------------------------
Name:
Title:
2