EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 14th day of
September, 2000, by and among VERIDIAN CORPORATION, a Delaware corporation, as
the Borrower, the lenders who are or may become a party to this Agreement, as
the Lenders, XXXXXX FINANCIAL, INC., as Documentation Agent, BANK OF AMERICA,
N.A., as Syndication Agent, FIRST UNION NATIONAL BANK, a national banking
association, as Administrative Agent for the Lenders.
STATEMENT OF PURPOSE
Pursuant to the Revolving Credit Agreement dated as of September 7, 1999
(as amended, restated, modified or otherwise supplemented from time to time
prior to the date hereof, the "Existing Credit Agreement") by and among the
Borrower, the Existing Lenders (as defined below) party thereto, and the agents
listed therein, such Existing Lenders extended certain credit facilities to the
Borrower pursuant to the terms thereof.
The Borrower has requested, and the Existing Lenders have agreed, to
modify the Existing Credit Agreement in certain respects on the terms and
conditions set forth below.
For ease of reference, the parties hereto have agreed that the Existing
Credit Agreement and certain other Loan Documents (as hereinafter defined)
should be amended and restated to reflect such modifications.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in
this Agreement shall have the meanings assigned to them below:
"Accounts Receivable" means all trade accounts receivable of the
Borrower or any of its Restricted Subsidiaries.
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 13.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1(c).
"Advances" means, as to any Lender at any time, (a) an amount equal to
the sum of (i) the aggregate principal amount of all Revolving Credit Loans made
by such Lender then outstanding, (ii) such Lender's Revolving Credit Commitment
Percentage of the L/C Obligations then outstanding, (iii) such Lender's
Revolving Credit Commitment Percentage of the Swingline Loans then outstanding
and (iv) the aggregate principal amount of all Term Loans made by such Lender
then outstanding, or (b) the making of any Loan or participation in any Letter
of Credit by such Lender, as the context requires.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote ten percent (10%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Agents" means the collective reference to the Administrative Agent and
the Syndication Agent.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be One Million Nine Hundred Ninety Nine Thousand Five
Hundred Dollars ($199,500,000).
"Aggregate Commitment Percentage" means, as to any Lender at any time,
the ratio of (a) the sum of (i) the amount of the Revolving Credit Commitment of
such Lender plus (ii) the Term Loans of such Lender to (b) the sum of (i) the
amount of the Revolving Credit Commitments of all Lenders plus (ii) the Term
Loans of all Lenders.
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Law" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
5.1(c).
"Application" means an application, in the form specified by the Issuing
Lender from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Arbitration Rules" shall have the meaning assigned thereto in Section
14.6(a).
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate or Subsidiary of such investment advisor.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 14.10.
"Assignments of Federal Claims" means the assignments of federal claims
executed by the Borrower and/or one or more of the Restricted Subsidiaries (upon
written demand by the
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Administrative Agent) for the benefit of the Administrative Agent and the
Lenders and properly acknowledged by the appropriate government representatives
in accordance with the Assignment of Claims Act of 1940, as amended, in
substantially the form attached hereto as Exhibit L, as amended or modified from
time to time.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 5.1(a).
"Benefited Lender" shall have the meaning assigned thereto in Section
5.6.
"Borrower" means Veridian Corporation, a Delaware corporation, in its
capacity as borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Calculation Date" shall have the meaning assigned thereto in Section
5.1(c).
"Capital Asset" means, with respect to the Borrower and its Restricted
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Borrower
and its Restricted Subsidiaries.
"Capital Expenditures" means with respect to the Borrower and its
Restricted Subsidiaries for any period, the aggregate cost of all Capital Assets
acquired by the Borrower and its Restricted Subsidiaries during such period, as
determined in accordance with GAAP.
"Capital Lease" means any lease of any property by the Borrower or any
of its Restricted Subsidiaries, as lessee, that should, in accordance with GAAP,
be classified and accounted for as a capital lease on a Consolidated balance
sheet of the Borrower and its Restricted Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
12.1(i).
"Cash Equivalents" shall have the meaning assigned thereto in Section
11.3(d).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 6.2 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
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"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Collateral" shall mean the collateral security for the Obligations
pledged or granted pursuant to the Security Documents.
"Collateral Agreements" means the collective reference to any security,
pledge or other collateral agreement, executed from time to time by the Borrower
or any of its Restricted Subsidiaries in favor of the Administrative Agent for
the ratable benefit of itself and the Lenders, substantially in the form of
Exhibit I (including, without limitation, any security, pledge or other
collateral agreement executed and delivered pursuant to the Existing Credit
Agreement, which such existing security, pledge or other collateral agreements
have been reaffirmed by the parties thereto on terms and conditions acceptable
to the Administrative Agent), as such agreement may be amended, restated,
supplemented or otherwise modified from time to time.
"Commitment" means, as to any Lender, the sum of such Lender's Revolving
Credit Commitment and Term Loan Commitment as set forth opposite such Lender's
name on Schedule 1 hereto, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrower and its Restricted Subsidiaries,
such statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Credit Facility" means, collectively, the Revolving Credit Facility,
the Term Loan Facility and the L/C Facility.
"Debt" means, with respect to the Borrower and its Restricted
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including but not limited to obligations
evidenced by bonds, debentures, notes or other similar instruments of any such
Person, (b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition agreements), except trade payables arising in the ordinary
course of business not more than ninety (90) days past due, (c) all obligations
of any such Person as lessee under Capital Leases, (d) all Debt of any other
Person secured by a Lien on any asset of any such Person, (e) all Guaranty
Obligations of any such Person, (f) all obligations, contingent or otherwise, of
any such Person relative to the face amount of letters of credit, whether or not
drawn, including without limitation any Reimbursement Obligation, and banker's
acceptances issued for the account of any such Person, (g) all obligations of
any such Person to redeem, repurchase, exchange, defease or otherwise make
payments in respect of capital stock or other securities or partnership
interests of such Person and, (h) all net payment obligations incurred by any
such Person pursuant to Hedging Agreements.
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"Default" means any of the events specified in Section 12.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Disputes" shall have the meaning set forth in Section 14.6.
"Documentation Agent" shall mean Xxxxxx Financial, Inc, in its capacity
as documentation agent hereunder.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Restricted
Subsidiaries in accordance with GAAP: (a) Net Income for such period plus (b)
the sum of the following to the extent deducted in determining Net Income: (i)
the amount of Interest Expense paid in cash or payable in cash and accrued
during such period, (ii) the amount of Income Tax Expense, calculated without
taking into account any extraordinary items during such period, (iii) the amount
of amortization and depreciation expense for such period and (iv) non-cash
losses realized on the sale of assets during such period, calculated without
taking into account any extraordinary items less (c) interest income and any
cash or non-cash gains realized on the sale of assets during such period;
provided that EBITDA shall be adjusted on a pro forma basis for any Permitted
Acquisition or divestiture (including pro forma expense and cost-reductions
calculated on a basis consistent with Regulation S-X of the U.S. Securities and
Exchange Commission, any adjustments approved by the Administrative Agent for
the four (4) consecutive fiscal quarters immediately preceding such Permitted
Acquisition or divestiture and any other adjustments approved by the
Administrative Agent and set forth on Schedule 1A to the financial certificate
delivered pursuant to Section 6.2(e)(ii), as updated from time to time pursuant
to Section 8.1(a) any such pro forma adjustment, the "EBITDA Adjustment").
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of any other
country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, (f) any special
purpose investment funds which are organized for the purpose of making or
acquiring participations in or investing in loans of the type made pursuant to
this Agreement, or any Approved Fund or (g) any other Person that has been
approved in writing as an Eligible Assignee by the Borrower and the
Administrative Agent.
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"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
(6) years been maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"Environmental Laws" means all applicable provisions of law, statute,
ordinances, rules, regulations, judgments, writs, injunctions, decrees, orders,
awards and standards promulgated by the government of the United States of
America or any foreign government or by any state, province, municipality or
other political subdivision thereof or therein or by any court, agency or
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"Equity Investment" has the meaning assigned thereto in Section
6.2(f)(i).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 12.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excess Cash Flow" means, for any period of determination determined in
accordance with GAAP, the sum of (a) EBIDTA for such period, minus (b) income
taxes (to the extent such taxes are paid in cash) and Interest Expense paid in
cash deducted in the determination of Net Income for such period, minus (c) all
scheduled principal payments made in respect of Debt during such period,
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minus (d) all Capital Expenditures (excluding Capital Expenditures made with the
proceeds of Debt), plus or minus, as applicable, (e) the net change in the
working capital of the Borrower and its Restricted Subsidiaries during such
period.
"Excess Proceeds" shall have the meaning assigned thereto in Section
2.6(c).
"Exchange Act" means that Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Exchange Debentures" means the Exchange Debentures due 2010 issuable by
the Borrower in exchange for the Preferred Stock in accordance with the
Preferred Stock Certificate of Designation.
"Existing Bridge Facility" means the existing senior subordinated notes
of the Borrower issued pursuant to the Note Purchase Agreement dated September
7, 1999, by and among the Borrower, as issuer, the Subsidiaries thereof, as
guarantors, and the purchasers party thereto.
"Existing Credit Agreement" has the meaning assigned thereto in the
Statement of Purpose.
"Existing Lenders" means the lenders under the Existing Credit
Agreement.
"Existing Loans" means the loans made by the Existing Lenders to the
Borrower pursuant to the Existing Credit Agreement.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"Federal Funds Rate" means, at any time, the rate per annum (rounded
upwards, if necessary, to the next higher 1/100th of 1%) representing the daily
effective federal funds rate as quoted by the Administrative Agent and confirmed
in Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"Fee Letter" has the meaning assigned thereto in Section 5.3(c).
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its Restricted
Subsidiaries ending on December 31.
"Foreign Subsidiary" means any Subsidiary of the Borrower not organized
under the laws of any State of the United States or the District of Columbia.
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"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
(subject to Section 14.9) consistent with the prior financial practice of the
Borrower and its Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Agreements" means the collective reference to the
unconditional guaranty agreements executed from time to time by any Restricted
Subsidiary in favor of the Administrative Agent for the ratable benefit of
itself and the Lenders, substantially in the form of Exhibit H (including,
without limitation, any guaranty agreement executed and delivered pursuant to
the Existing Credit Agreement, which such existing guaranty agreements have been
reaffirmed by the parties thereto on terms and conditions acceptable to the
Administrative Agent), as amended, restated, supplemented or otherwise modified
from time to time.
"Guaranty Obligation" means, with respect to the Borrower and its
Restricted Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly or
indirectly guaranteed any Debt or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of any such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or toxic substances
or related materials defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), and in the regulations adopted and
publications promulgated pursuant thereto, or any other applicable federal,
state or local government law, ordinance, rule or regulation.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrower, and any
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confirming letter executed pursuant to such hedging agreement, all as amended,
restated, supplemented or otherwise modified from time to time.
"Income Tax Expense" means, with respect to the Borrower and its
Restricted Subsidiaries, for any period, the amount of income taxes or similar
taxes (whether federal, state, local or foreign) paid or payable during such
period, as determined in accordance with GAAP.
"Initial Commercial Business Investment" has the meaning assigned
thereto in Section 9.12.
"Insurance Proceeds" shall have the meaning assigned thereto in Section
4.4(b)(iv).
"Interest Expense" means, with respect to the Borrower and its
Restricted Subsidiaries for any period, the gross interest expense (including,
without limitation, interest expense with respect to the Subordinated Notes paid
with PIK Subordinated Notes and interest expense attributable to Capital Leases
and all net payment obligations pursuant to Hedging Agreements) of the Borrower
and its Restricted Subsidiaries, all determined for such period on a
Consolidated basis, without duplication, in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
5.1(b).
"ISPA98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" means First Union, in its capacity as issuer of any
Letter of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Twenty Million Dollars
($20,000,000) and (b) the Revolving Credit Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
having Revolving Credit Commitments other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender and the Swingline Lender
unless the context otherwise requires) set forth on the signature pages hereto
and each Person that hereafter becomes a party to this Agreement as a Lender
pursuant to Section 14.10.
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"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Revolving Credit Commitment Percentage or Term
Loan Percentage, as applicable, of the Advances.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
"LIBOR" means, with respect to a particular Interest Period, the rate of
interest per annum determined on the basis of the rate for deposits in Dollars
in minimum amounts of at least $5,000,000 for a period equal to the applicable
Interest Period which appears on the Dow Xxxxx Market Screen 3750 at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period (rounded upward, if necessary, to the
nearest 1/100th of 1%). If, for any reason, such rate does not appear on Dow
Xxxxx Market Screen 3750, then "LIBOR" shall be determined by the Administrative
Agent to be the arithmetic average of the rate per annum at which deposits in
Dollars in minimum amounts of at least $5,000,000 would be offered by first
class banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest
Period. Each calculation by the Administrative Agent of LIBOR shall be
conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
----------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 5.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset, including, without limitation, any filing under the Assignment of
Claims Act of 1940, as amended, whether or not filed or delivered. For the
purposes of this Agreement, a Person shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capital Lease or other title
retention agreement relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, the Security Documents, each joinder agreement and each other
document, instrument, certificate and agreement executed and delivered by the
Borrower or any Restricted Subsidiary thereof in connection with this Agreement
or otherwise referred to herein or contemplated hereby, all as may be amended,
restated, supplemented or otherwise modified from time to time.
"Loans" means the collective reference to the Revolving Credit Loans,
the Term Loans and the Swingline Loans and "Loan" means any of such Loans.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties or condition (financial or otherwise)
of the Borrower and its Restricted
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Subsidiaries on a Consolidated basis, (b) the ability of the Borrower or any
Restricted Subsidiary to perform its obligations under any Loan Document, or (c)
the validity or enforceability of the Loan Documents taken as a whole or the
rights or remedies of the Administrative Agent or the Lenders under the Loan
Documents taken as a whole.
"Material Governmental Contract" means, as of any date of determination,
a contract between the Borrower or any of its Restricted Subsidiaries and an
agency, department or instrumentality of the United States or any state
Governmental Authority in the United States where the Borrower or such
Restricted Subsidiary is the prime contractor and at least five million Dollars
($5,000,000) of potential revenues remain outstanding to be earned over the
remaining term of such contract.
"Material Contract" means (a) any Material Governmental Contract, (b)
any other contract or other agreement, written or oral, of the Borrower or any
of its Restricted Subsidiaries involving monetary liability of or to any such
Person in an amount in excess of $1,000,000 per annum, or (c) any other contract
or agreement, written or oral, of the Borrower or any of its Restricted
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six (6) years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
or other disposition of assets, the gross cash proceeds received by the Borrower
or any of its Restricted Subsidiaries from such sale less the sum of (i) all
cash income taxes and other cash taxes assessed by a Governmental Authority as a
result of such sale and any other cash fees and expenses incurred in connection
therewith and (ii) the principal amount of, premium, if any, and cash interest
on any Debt secured by a Lien on the asset (or a portion thereof) sold, which
Debt is required to be repaid in connection with such sale, (b) with respect to
any offering of capital stock or issuance of Debt, the gross cash proceeds
received by the Borrower or any of its Restricted Subsidiaries therefrom less
all legal, underwriting and other cash fees and expenses incurred in connection
therewith and (c) with respect to any payment under an insurance policy or in
connection with a condemnation proceeding, the amount of cash proceeds received
by the Borrower or its Restricted Subsidiaries from an insurance company or
Governmental Authority, as applicable, net of all expenses of collection.
"Net Income" means, with respect to the Borrower and its Restricted
Subsidiaries, for any period of determination, the net income (or loss) of the
Borrower and its Restricted Subsidiaries for such period, determined on a
Consolidated basis in accordance with GAAP; provided that there shall be
excluded from Net Income the net income (or loss) of any Person, in which the
Borrower or any of its Restricted Subsidiaries has a joint interest with a third
party, except to the extent such net income is actually paid to the Borrower or
any of its Restricted Subsidiaries by dividend or other distribution during such
period.
11
"New Stock Incentive Plan" means Veridian Corporation 2000 Stock
Purchase Plan as in effect on the date hereof, a copy of which has been provided
to the Administrative Agent.
"Notes" means the collective reference to the Revolving Credit Notes,
the Term Notes and Swingline Notes and "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.3(b).
"Notice of Borrowing" shall have the meaning assigned thereto in Section
2.3(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 5.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.4(c).
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all payment and other obligations owing by the Borrower to any
Lender or the Administrative Agent under any Hedging Agreement with any Lender
(which such Hedging Agreement is permitted or required hereunder), and (d) all
other fees and commissions (including attorney's fees), charges, indebtedness,
loans, liabilities, financial accommodations, obligations, covenants and duties
owing by the Borrower or any of its Restricted Subsidiaries to any Lender, the
Lenders or the Administrative Agent, in each case under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents of
every kind, nature and description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated or unliquidated, and
whether or not evidenced by any note.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 8.2.
"Other Taxes" shall have the meaning assigned thereto in Section
5.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for the employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
(6) years been maintained for the employees of the Borrower or any of its
current or former ERISA Affiliates.
"Permitted Acquisition" has the meaning assigned thereto in Section
11.3(d).
"Permitted Acquisition Documents" means with respect to any acquisition
proposed by the Borrower or any Restricted Subsidiary thereof, the purchase
agreement, sale agreement, merger agreement or other agreement evidencing such
acquisition, including, without limitation, all legal opinions and each other
document executed, delivered, contemplated by or prepared in connection
therewith and any amendment, modification or supplement to any of the foregoing.
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"Permitted Acquisition Diligence Information" means with respect to any
acquisition proposed by the Borrower or any Restricted Subsidiary thereof, to
the extent applicable, all financial information, all environmental reports
(including, without limitation, any phase I and, to the extent applicable, phase
II reports), all Material Contracts, all customer lists, all supply agreements
and all other material information, in each case, requested to be delivered to
the Administrative Agent in connection with such proposed acquisition.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"PIK Subordinated Notes" means all Senior Subordinated PIK Notes issued
pursuant to the Subordinated Note Agreement.
"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by First Union as its prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in such prime rate occurs. The parties hereto acknowledge that the rate
announced publicly by First Union as its prime rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or
other banks.
"Preferred Stock" means the senior redeemable exchangeable preferred
stock of the Borrower issued pursuant to the Preferred Stock Certificate of
Designation.
"Preferred Stock Certificate of Designation" means the amended
certificate of designation of the Borrower dated as of September 14, 2000, as
amended or modified in accordance with the terms hereof.
"Prohibited Transaction" shall mean any transaction involving any
Employee Benefit Plan which is proscribed by Section 406 of ERISA or Section
4975 of the Code.
"Register" shall have the meaning assigned thereto in Section 14.10(d).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means, at any date, any combination of Lenders
holding at least fifty-one percent (51%) of the sum of (a) the aggregate amount
of Advances outstanding and (b) the aggregate amount of unused Commitments or,
if the Credit Facility has been terminated pursuant to Section 12.2, any
combination of Lenders holding at least fifty-one percent (51%) of the aggregate
Advances.
"Responsible Officer" means any of the chief executive officer or chief
financial officer of the Borrower or any other officer of the Borrower
reasonably acceptable to the Administrative Agent.
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"Restricted Subsidiaries" means all Subsidiaries of the Borrower other
than (a) the Unrestricted Subsidiary and (b) the Subsidiaries identified as
inactive on Schedule 7.1(c) hereto, such inactive Subsidiaries, the "Inactive
Subsidiaries;" provided that, any Inactive Subsidiaries which engages in
business operations on or after the date which is one hundred-eighty (180) days
after the Closing Date or possesses assets in excess of $1,000,000 shall
immediately be deemed to be a Restricted Subsidiary.
"Revolving Credit Commitment" means (a) as to any Lender, the obligation
of such Lender to make Revolving Credit Loans to the account of the Borrower
hereunder in an aggregate principal amount at any time outstanding not to exceed
the amount set forth opposite such Lender's name on Schedule 1 hereto as such
amount may be reduced or modified at any time or from time to time pursuant to
the terms hereof and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Loans, as such amount may be reduced at any
time or from time to time pursuant to the terms hereof. The Revolving Credit
Commitment of all Lenders on the Closing Date shall be $89,500,000.
"Revolving Credit Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Revolving Credit Commitments of all Lenders; provided, that if
at any time the Revolving Credit Commitments of all Lenders have been reduced to
zero, then the Revolving Credit Commitment Percentage as of such time shall
equal the Revolving Credit Commitment Percentage as of the time immediately
before the Revolving Credit Commitments of all Lenders are reduced to zero.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II.
"Revolving Credit Loans" means any revolving loan made to the Borrower
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"Revolving Credit Notes" means the collective reference to the Revolving
Credit Notes made by the Borrower payable to the order of each Lender,
substantially in the form of Exhibit A-1 hereto, evidencing the Revolving Credit
Facility, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part; "Revolving Credit Note" means any of such Revolving Credit
Notes.
"Revolving Credit Maturity Date" means the earliest of the dates
referred to in Section 2.7.
"Security Documents" means the collective reference to the Guaranty
Agreements, the Collateral Agreements, the Assignments of Federal Claims, if
any, and each other agreement or writing pursuant to which the Borrower or any
Restricted Subsidiary thereof purports to pledge or grant a security interest in
any property or assets securing all or any portion of the Obligations or any
such Person purports to guaranty the payment and/or performance of all or any
portion of the Obligations.
"Senior Debt" means all Total Debt other than Subordinated Debt.
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"Senior Leverage Ratio" has the meaning assigned thereto in Section
10.1.
"Solvent" shall have the meaning assigned thereto in Section 7.1(q).
"Subordinated Debt" means the collective reference to the Subordinated
Notes and any other Debt of the Borrower or any Restricted Subsidiary
subordinated in right and time of payment to the Obligations and containing such
other terms and conditions (including, without limitation, subordination terms),
in each case as are satisfactory to the Required Lenders.
"Subordinated Guaranty" means the Subsidiary Guaranty Agreement dated as
of September 14, 2000, entered into by each of the Restricted Subsidiaries in
connection with the Subordinated Note Agreement.
"Subordinated Notes" means the Senior Subordinated Notes issued pursuant
to the Subordinated Note Agreement.
"Subordinated Note Agreement" means the Note Agreement dated as of
September 14, 2000 between Veridian Corporation, as issuer, and the purchasers
party thereto, as amended or modified to the extent permitted pursuant to the
terms of this Agreement.
"Subordinated Note Agreement Standstill Period" shall have the meaning
assigned to the term "Standstill Period" in the Subordinated Note Agreement.
"Subordinated Note Documents" means the Subordinated Note Agreement, the
Subordinated Notes, the Subordinated Guaranty, and each other document or
agreement executed in connection with the Subordinated Note Agreement or the
Subordinated Notes, in each case as amended or modified to the extent permitted
pursuant to the terms of this Agreement.
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock or other ownership
interests of any other class or classes of such corporation, partnership,
limited liability company or other entity shall have or might have voting power
by reason of the happening of any contingency). Unless otherwise qualified
references to "Subsidiary" or "Subsidiaries" herein shall refer to those of the
Borrower.
"Swingline Commitment" means the lesser of (a) Five Million Dollars
($5,000,000) and (b) the Revolving Credit Commitment.
"Swingline Facility" means the swingline facility established pursuant
to Section 2.2.
"Swingline Lender" means First Union in its capacity as swingline lender
hereunder.
15
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Borrower pursuant to Section 2.2, and all such swingline loans
collectively as the context requires.
"Swingline Note" means the Swingline Note made by the Borrower payable
to the order of the Swingline Lender, substantially in the form of Exhibit A-2
hereto, evidencing the Swingline Loans, and any amendments and modifications
thereto, any substitutes therefor, and any replacements, restatements, renewals
or extensions thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of First Union as Administrative Agent in accordance with Section
13.9 or (b) the Revolving Credit Maturity Date.
"Syndication Agent" means Bank of America, N.A., in its capacity as
Syndication Agent hereunder.
"Taxes" shall have the meaning assigned thereto in Section 5.11(a).
"Term Loan Commitment" means (a) as to any Lender, the obligation of
such Lender to make the Term Loans to the account of the Borrower hereunder in
an aggregate principal amount not to exceed the amount set forth opposite such
Lender's name on Schedule 1 hereto, as such amount may be reduced or modified at
any time or from time to time pursuant to the terms hereof and (b) as to all
Lenders, the aggregate commitment to make Term Loans. The Term Loan Commitment
of all Lenders as of the Closing Date shall be $110,000,000.
"Term Loan Facility" shall mean the term loan facility established
pursuant to Article IV.
"Term Loan Maturity Date" means the first to occur of (a) September 14,
2006, or (b) the date of termination by the Administrative Agent on behalf of
the Lenders pursuant to Section 12.2(a).
"Term Loan Percentage" means, as to any Lender, (a) prior to making the
Term Loans, the ratio of (i) the Term Loan Commitment of such Lender to (ii) the
Term Loan Commitments of all Lenders and (b) after the Term Loans are made, the
ratio of (i) the outstanding principal balance of the Term Loan of such Lender
to (ii) the aggregate outstanding principal balance of the Term Loans of all
Lenders.
"Term Loans" shall mean the term loans to be made to the Borrower by the
Lenders pursuant to Section 4.1.
"Term Notes" means the Term Notes made by the Borrower payable to the
order of each of the Lenders, substantially in the form of Exhibit A-3 hereto,
evidencing the Debt incurred by the Borrower pursuant to the Term Loan Facility,
and any amendments, modifications and supplements thereto, any substitute
therefor, and any replacement, restatements, renewals or extensions thereof, in
whole or in part.
"Termination Event" means: (a) except for any such event that could not
reasonably be expected to have a Material Adverse Effect, a "Reportable Event"
described in Section 4043 of
16
ERISA for which the notice requirement has not been waived by the PBGC, or (b)
except that could not reasonably be expected to have a Material Adverse Effect,
the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan during
a plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (c) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041(c) of ERISA, or (d) the
institution of proceedings to terminate, or the appointment of a trustee with
respect to, any Pension Plan by the PBGC, or (e) any other event or condition
which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan,
or (f) the imposition of a Lien pursuant to Section 412 of the Code or Section
302 of ERISA, or (g) except for any such event that could not reasonably be
expected to have a Material Adverse Effect, any event or condition which results
in the reorganization or insolvency of a Multiemployer Plan under Sections 4241
or 4245 of ERISA, or (h) except for any such event that could not reasonably be
expected to have a Material Adverse Effect, any event or condition which results
in the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Total Debt" means, as of any date of determination with respect to the
Borrower and its Restricted Subsidiaries on a Consolidated basis without
duplication, the sum of all Debt of the Borrower and its Restricted
Subsidiaries.
"Total Leverage Ratio" has the meaning assigned thereto in Section 10.2.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina, as amended or modified from time to time.
"Unfunded Benefit Liabilities" shall mean, with respect to any Employee
Benefit Plan as of any date, the amount of the unfunded benefit liabilities
determined in accordance with Section 4001(a)(18) of ERISA.
"Uniform Customs" means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), effective January, 1994 International Chamber of
Commerce Publication No. 500.
"United States" means the United States of America.
"U.S. Government" means the United States or any of its departments,
agencies or instrumentalities, provided that the full faith and credit of the
United States is pledged in support thereof.
"Unrestricted Subsidiary" means Veritect, Inc. a Delaware corporation
and a Wholly-Owned Subsidiary of the Borrower as of the Closing Date.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by the Borrower and/or one or more
of its Wholly-Owned Subsidiaries (except for directors' qualifying
17
shares or other shares required by Applicable Law to be owned by a Person other
than the Borrower).
"Working Capital Liquidity Ratio" has the meaning assigned thereto in
Section 10.6
SECTION 1.2 General. Unless otherwise specified, a reference
in this Agreement to a particular article, section, subsection, Schedule or
Exhibit is a reference to that article, section, subsection, Schedule or Exhibit
of this Agreement. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, the feminine and the neuter. Any reference herein to "Charlotte
time" shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make Revolving
Credit Loans to the Borrower from time to time from the Closing Date through,
but not including, the Revolving Credit Maturity Date as requested by the
Borrower in accordance with the terms of Section 2.3; provided, that (a) the
aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to any amount requested) shall not exceed the Revolving Credit
Commitment less the sum of all outstanding Swingline Loans and L/C Obligations
and (b) the principal amount of outstanding Revolving Credit Loans from any
Lender to the Borrower shall not at any time exceed such Lender's Revolving
Credit Commitment less such Lender's Revolving Credit Commitment Percentage of
outstanding L/C Obligations and outstanding Swingline Loans. Each Revolving
Credit Loan by a Lender shall be in a principal amount equal to such Lender's
Revolving Credit Commitment Percentage of the aggregate principal amount of
Revolving Credit Loans requested on such occasion. Subject to the terms and
conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit
Loans hereunder until the Revolving Credit Maturity Date. Revolving Credit Loans
made on the Closing Date shall be funded in a manner consistent with the
provisions of Section 6.2(g)(i).
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SECTION 2.2 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower
from time to time from the Closing Date through, but not including, the
Swingline Termination Date; provided, that the aggregate principal amount of all
outstanding Swingline Loans (after giving effect to any amount requested), shall
not exceed the lesser of (i) the Revolving Credit Commitment less the sum of all
outstanding Revolving Credit Loans and the L/C Obligations and (ii) the
Swingline Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on
demand by the Swingline Lender. Such refundings shall be made by the Lenders in
accordance with their respective Revolving Credit Commitment Percentages and
shall thereafter be reflected as Revolving Credit Loans of the Lenders on the
books and records of the Administrative Agent. Each Lender shall fund its
respective Revolving Credit Commitment Percentage of Revolving Credit Loans as
required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 2:00 p.m. (Charlotte
time) on the next succeeding Business Day after such demand is made. No Lender's
obligation to fund its respective Revolving Credit Commitment Percentage of a
Swingline Loan shall be affected by any other Lender's failure to fund its
Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any
Lender's Revolving Credit Commitment Percentage be increased as a result of any
such failure of any other Lender to fund its Revolving Credit Commitment
Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand
the amount of such Swingline Loans to the extent amounts received from the
Lenders are not sufficient to repay in full the outstanding Swingline Loans
requested or required to be refunded. In addition, the Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in order
to immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Lenders are not sufficient to repay in full
the outstanding Swingline Loans requested or required to be refunded. If any
portion of any such amount paid to the Swingline Lender shall be recovered by or
on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise,
the loss of the amount so recovered shall be ratably shared among all the
Lenders in accordance with their respective Revolving Credit Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrower
pertain to a Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received notice in the manner required pursuant to Section 13.5 and which such
Event of Default has not been waived by the Required Lenders or the Lenders, as
applicable).
(iii) Each Lender acknowledges and agrees that its obligation
to refund Swingline Loans in accordance with the terms of this Section 2.2 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Article VI. Further, each Lender agrees and acknowledges that if
prior to the refunding of any outstanding Swingline Loans pursuant to this
Section 2.2, one of the events described in Section 12.1(j) or (k) shall have
occurred, each Lender will, on the date the applicable
19
Revolving Credit Loan would have been made, purchase an undivided participating
interest in the Swingline Loan to be refunded in an amount equal to its
Revolving Credit Commitment Percentage of the aggregate amount of such Swingline
Loan. Each Lender will immediately transfer to the Swingline Lender, in
immediately available funds, the amount of its participation and upon receipt
thereof the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received from
any Lender such Lender's participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded).
SECTION 2.3 Procedure for Advances of Revolving Credit and
Swingline Loans.
(a) Requests for Borrowing. The Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached
hereto as Exhibit B-1 (a "Notice of Borrowing") not later than Noon (Charlotte
time) (i) on the same Business Day as each Base Rate Loan and each Swingline
Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of
its intention to borrow, specifying (A) the date of such borrowing, which shall
be a Business Day, (B) the amount of such borrowing, which shall be (x) with
respect to Base Rate Loans in an aggregate principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof, (y) with respect to LIBOR Rate
Loans in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (z) with respect to Swingline Loans in an
aggregate principal amount of $100,000 or a whole multiple of $50,000 in excess
thereof, (C) whether such Loan is to be a Revolving Credit Loan, (D) in the case
of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base
Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto. A Notice of Borrowing received after Noon
(Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Borrowing.
(b) Disbursement of Revolving Credit and Swingline Loans. Not later
than 3:00 p.m. (Charlotte time) on the proposed borrowing date, (i) each Lender
will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lender's Revolving Credit Commitment
Percentage of the Revolving Credit Loans to be made on such borrowing date and
(ii) the Swingline Lender will make available to the Administrative Agent, for
the account of the Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made on such borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.3 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Borrower identified in the
most recent notice substantially in the form of Exhibit C hereto (a "Notice of
Account Designation") delivered by the Borrower to the Administrative Agent or
may be otherwise agreed upon by the Borrower and the Administrative Agent from
time to time. Subject to Section 5.7 hereof, the Administrative Agent shall not
be obligated to disburse the portion of the proceeds of any Revolving Credit
Loan requested pursuant to this Section 2.3 to the extent that any Lender has
not made available to the Administrative Agent
20
its Revolving Credit Commitment Percentage of such Loan. Revolving Credit Loans
to be made for the purpose of refunding Swingline Loans shall be made by the
Lenders as provided in Section 2.2(b).
SECTION 2.4 Repayment of Revolving Credit and Swingline
Loans.
(a) Repayment on Termination Date. The Borrower shall repay the
outstanding principal amount of (i) all Revolving Credit Loans in full on the
Revolving Credit Maturity Date, and (ii) all Swingline Loans in accordance with
Section 2.2(b), together, in each case, with all accrued but unpaid interest
thereon.
(b) Mandatory Repayment of Revolving Credit Loans. If at any time
the outstanding principal amount of all Revolving Credit Loans plus the sum of
all outstanding Swingline Loans and L/C Obligations exceeds the Revolving Credit
Commitment, the Borrower shall repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of
the Lenders, Advances in an amount equal to such excess with each such repayment
applied first to the principal amount of outstanding Swingline Loans, second to
the principal amount of outstanding Revolving Credit Loans and third, with
respect to any Letters of Credit then outstanding, a payment of cash collateral
into a cash collateral account opened by the Administrative Agent, for the
benefit of the Lenders in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (such cash collateral to be applied
in accordance with Section 12.2(b)).
(c) Optional Repayments. The Borrower may at any time and from time
to time repay the Revolving Credit and/or Swingline Loans, in whole or in part,
upon at least three (3) Business Days' irrevocable notice to the Administrative
Agent with respect to LIBOR Rate Loans and one (1) Business Day irrevocable
notice with respect to Base Rate Loans and Swingline Loans, in the form attached
hereto as Exhibit D (a "Notice of Prepayment") specifying the date and amount of
repayment and whether the repayment is of LIBOR Rate Loans, Base Rate Loans,
Swingline Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such
notice. Partial repayments shall be in an aggregate amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof with respect to Base Rate Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to
LIBOR Rate Loans and $100,000 or a whole multiple of $50,000 in excess thereof
with respect to Swingline Loans.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may
not repay any LIBOR Rate Loan on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 5.9 hereof.
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SECTION 2.5 Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and
the obligation of the Borrower to repay such Revolving Credit Loans shall be
evidenced by a separate Revolving Credit Note executed by the Borrower payable
to the order of such Lender.
(b) Swingline Notes. The Swingline Loans and the obligations of the
Borrower to repay such Swingline Loans shall be evidenced by a Swingline Note
executed by the Borrower payable to the order of the Swingline Lender.
SECTION 2.6 Permanent Reduction of the Revolving Credit
Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any
time and from time to time, upon at least five (5) Business Days prior written
notice to the Administrative Agent, to permanently reduce, without premium or
penalty, (i) the entire Revolving Credit Commitment at any time or (ii) portions
of the Revolving Credit Commitment, from time to time, in an aggregate principal
amount not less than $1,000,000 or any whole multiple of $500,000 in excess
thereof. The amount of each partial permanent reduction shall be applied pro
rata to reduce the remaining mandatory reduction amounts required under Section
2.6(b), and such reduction shall permanently reduce the Lenders' Revolving
Credit Commitments pro rata in accordance with their respective Revolving Credit
Commitment Percentages.
(b) Mandatory Reduction. The Revolving Credit Commitment shall be
permanently reduced in the manner set forth in Section 2.6(d) below in amounts
equal to one hundred percent (100%) of the Net Cash Proceeds from any offering
of equity securities by the Unrestricted Subsidiary (including, without
limitation, an initial public offering); provided, that the amount of such
Revolving Credit Commitment Reduction shall not exceed the amount of the Initial
Commercial Business Investment. Such prepayment shall be made within three (3)
Business Days after the date of receipt of Net Cash Proceeds of any such
transaction.
(c) If at any time proceeds ("Excess Proceeds") remain after the
prepayment of Term Loans pursuant to Section 4.4(b)(i), (ii), (iii) or (iv), the
Revolving Credit Commitment shall be permanently reduced on the date of the
required prepayment under Section 4.4(b) by an amount equal to the amount of
such Excess Proceeds.
(d) Each permanent reduction permitted or required pursuant to this
Section 2.6 shall be accompanied by a payment of principal sufficient to reduce
the aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations, as applicable, after such reduction to the Revolving Credit
Commitment as so reduced and if the Revolving Credit Commitment as so reduced is
less than the aggregate amount of all outstanding Letters of Credit, the
Borrower shall be required to deposit in a cash collateral account opened by the
Administrative Agent in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Any reduction of the Revolving
Credit Commitment to zero shall be accompanied by payment of all outstanding
Revolving Credit Loans and Swingline Loans (and furnishing of cash collateral
satisfactory to the Administrative Agent for all L/C Obligations) and shall
result in the termination of the Revolving Credit Commitment and the Swingline
Commitment and the Revolving Credit
22
Facility. Such cash collateral shall be applied in accordance with Section
12.2(b). If the reduction of the Revolving Credit Commitment requires the
repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 5.9 hereof.
SECTION 2.7 Termination of Revolving Credit Facility. The
Revolving Credit Facility shall terminate on the earliest of (a) September 14,
2005, (b) the date of termination pursuant to Section 2.6, or (c) the date of
termination by the Administrative Agent on behalf of the Lenders pursuant to
Section 12.2(a).
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the agreements of the
other Lenders set forth in Section 3.4(a), agrees to issue standby letters of
credit ("Letters of Credit") for the account of the Borrower on any Business Day
from the Closing Date through but not including the Revolving Credit Maturity
Date in such form as may be approved from time to time by the Issuing Lender;
provided, that the Issuing Lender shall have no obligation to issue any Letter
of Credit if, after giving effect to such issuance, (a) the L/C Obligations
would exceed the L/C Commitment or (b) the aggregate principal amount of
outstanding Revolving Credit Loans, plus the aggregate principal amount of
outstanding Swingline Loans, plus the aggregate amount of L/C Obligations would
exceed the Revolving Credit Commitment. Each Letter of Credit shall (i) be
denominated in Dollars in a minimum amount acceptable to the Issuing Lender;
(ii) be a standby letter of credit issued to support obligations of the Borrower
or any of its Restricted Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date satisfactory to the Issuing
Lender, which date shall be no later than the Revolving Credit Maturity Date and
(iv) be subject to the Uniform Customs and/or ISPA 98, as set forth in the
Application or as determined by the Issuing Lender and, to the extent not
inconsistent therewith, the laws of the State of North Carolina. The Issuing
Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any Applicable Law.
References herein to "issue" and derivations thereof with respect to Letters of
Credit shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that the Issuing Lender issue a Letter of
Credit by delivering to the Issuing Lender at the Administrative Agent's Office
an Application therefor, completed to the reasonable satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may request. Upon receipt of any Application, the Issuing
Lender shall process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall, subject to Section 3.1 and Article VI
hereof, promptly issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any Letter of Credit earlier than
three (3) Business Days after its receipt of the Application therefor and all
such other certificates, documents and other papers and information relating
thereto) by issuing the original of
23
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
by the Issuing Lender and the Borrower. The Issuing Lender shall promptly
furnish to the Borrower a copy of such Letter of Credit and promptly notify each
Lender of the issuance and upon request by any Lender, furnish to such Lender a
copy of such Letter of Credit and the amount of such Lender's L/C Participation
therein.
SECTION 3.3 Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, a letter of credit
commission with respect to each Letter of Credit in an amount equal to the face
amount of such Letter of Credit multiplied by the Applicable Margin with respect
to Revolving Credit Loans which are LIBOR Rate Loans (determined on a per annum
basis). Such commission shall be payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Revolving Credit Maturity Date.
The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the L/C Participants all commissions
received pursuant to this Section 3.3(a) in accordance with their respective
Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the Borrower shall pay
the Issuing Lender an issuance fee with respect to each Letter of Credit in an
amount equal to the face amount of such Letter of Credit multiplied by one
hundred twenty-five hundredths percent (0.125%) per annum. Such issuance fee
shall be payable quarterly in arrears on the last Business Day of each calendar
quarter and on the Revolving Credit Maturity Date.
(c) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Lender's obligations and rights under and
in respect of each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
24
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect to
any amounts owing under this Section 3.4(b) shall be conclusive in the absence
of manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
Section 3.4, the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, or any payment of
interest on account thereof, the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. In the
event of any drawing under any Letter of Credit, the Borrower agrees to
reimburse (either with the proceeds of a Revolving Credit Loan as provided for
in this Section 3.5 or with funds from other sources), in same day funds, the
Issuing Lender on each date on which the Issuing Lender notifies the Borrower of
the date and amount of a draft paid under any Letter of Credit for the amount of
(a) such draft so paid and (b) any amounts referred to in Section 3.3(c)
incurred by the Issuing Lender in connection with such payment. Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower intends
to reimburse the Issuing Lender for such drawing from other sources or funds,
the Borrower shall be deemed to have timely given a Notice of Borrowing to the
Administrative Agent requesting that the Lenders make a Revolving Credit Loan
bearing interest at the Base Rate on such date in the amount of (a) such draft
so paid and (b) any amounts referred to in Section 3.3(c) incurred by the
Issuing Lender in connection with such payment, and the Lenders shall make a
Revolving Credit Loan bearing interest at the Base Rate in such amount, the
proceeds of which shall be applied to reimburse the Issuing Lender for the
amount of the related drawing and costs and expenses. Each Lender acknowledges
and agrees that its obligation to fund a Revolving Credit Loan in accordance
with this Section 3.5 to reimburse the Issuing Lender for any draft paid under a
Letter of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Section 2.3(a) or Article VI. If the Borrower has
elected to pay the amount of such drawing with funds from other sources and
shall
25
fail to reimburse the Issuing Lender as provided above, the unreimbursed amount
of such drawing shall bear interest at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full.
SECTION 3.6 Obligations Absolute. The Borrower's obligations
under this Article III (including without limitation the Reimbursement
Obligation) shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees that the Issuing
Lender and the L/C Participants shall not be responsible for, and the Borrower's
Reimbursement Obligation under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct. The Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender or any L/C Participant
to the Borrower. The responsibility of the Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment
are in conformity with such Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that any
provision of any Application related to any Letter of Credit is inconsistent
with the provisions of this Article III, the provisions of this Article III
shall apply.
ARTICLE IV
TERM LOAN FACILITY
SECTION 4.1 Term Loan. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make a Term Loan to the
Borrower on the Closing Date. The Term Loan shall be funded by each Lender in a
principal amount equal to such Lender's Term Loan Percentage of the aggregate
principal amount of the Term Loans made on the Closing Date, which aggregate
principal amount shall equal the total Term Loan Commitment. Term Loans made on
the Closing Date shall be funded in a manner consistent with the provisions of
Section 6.2(g)(i).
SECTION 4.2 Procedure for Advance of Term Loan. The Borrower
shall give the Administrative Agent an irrevocable prior written notice in the
form attached hereto as Exhibit B-2 (a "Notice of Term Loan Borrowing") prior to
Noon (Charlotte time) on the Closing Date
26
requesting that the Lenders make the Term Loan as a Base Rate Loan on such date.
Upon receipt of such Notice of Borrowing from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Not later than 3:00 p.m.
(Charlotte time) on the Closing Date, each Lender will make available to the
Administrative Agent for the account of the Borrower, at the office of the
Administrative Agent in immediately available funds, the amount of such Term
Loan to be made by such Lender on such borrowing date. The Borrower hereby
irrevocably authorizes the Administrative Agent to disburse the proceeds of the
Term Loan in immediately available funds by wire transfer to such Person or
Persons as may be designated by the Borrower.
SECTION 4.3 Repayment of Term Loan. The Borrower shall repay
the aggregate outstanding principal amount of the Term Loan in consecutive
quarterly installments on the last Business Day of each of March, June,
September and December commencing September 2000 as set forth below, except as
the amounts of individual installments may be adjusted pursuant to Section 4.4
hereof:
------------------------------------------------------------------------------------------
PRINCIPAL
INSTALLMENT
FISCAL YEAR PAYMENT DATE ($)
------------------------------------------------------------------------------------------
September $275,000
----------------------------------------------------------------
2000 December $275,000
------------------------------------------------------------------------------------------
2001 March $275,000
----------------------------------------------------------------
June $275,000
----------------------------------------------------------------
September $275,000
----------------------------------------------------------------
December $275,000
------------------------------------------------------------------------------------------
2002 March $275,000
----------------------------------------------------------------
June $275,000
----------------------------------------------------------------
September $275,000
----------------------------------------------------------------
December $275,000
------------------------------------------------------------------------------------------
2003 March $275,000
----------------------------------------------------------------
June $275,000
----------------------------------------------------------------
September $275,000
----------------------------------------------------------------
December $275,000
------------------------------------------------------------------------------------------
2004 March $275,000
----------------------------------------------------------------
June $275,000
----------------------------------------------------------------
September $275,000
----------------------------------------------------------------
December $275,000
------------------------------------------------------------------------------------------
2005 March $275,000
----------------------------------------------------------------
June $275,000
----------------------------------------------------------------
September $275,000
----------------------------------------------------------------
December $26,056,250
------------------------------------------------------------------------------------------
2006 March $26,056,250
----------------------------------------------------------------
June $26,056,250
----------------------------------------------------------------
September $26,056,250
------------------------------------------------------------------------------------------
If not sooner paid, the Term Loan shall be paid in full, together with accrued
interest thereon, on the Term Loan Maturity Date. Amounts repaid under the Term
Loan may not be reborrowed and will constitute a permanent reduction in such
Term Loan Commitment.
27
SECTION 4.4 Prepayments of Term Loan.
(a) Optional Prepayment of Term Loan. The Borrower shall have the
right at any time and from time to time, upon delivery to the Administrative
Agent of a Notice of Prepayment at least three (3) Business Days prior to any
repayment, to prepay the Term Loan in whole or in part without premium or
penalty except as provided in Section 5.9. Each optional prepayment of the Term
Loan hereunder shall be in an aggregate principal amount of at least $5,000,000
or any whole multiple of $1,000,000 in excess thereof and shall be applied to
the outstanding principal installments of the Term Loan in inverse order of
maturity thereof. Each repayment shall be accompanied by any amount required to
be paid pursuant to Section 5.9 hereof.
(b) Mandatory Prepayment of Term Loan.
(i) Debt Proceeds. The Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in Section
4.4(b)(vi) below in amounts equal to one hundred percent (100%) of the aggregate
Net Cash Proceeds from any incurrence of Debt in excess of $500,000 in any
Fiscal Year (other than Net Cash Proceeds from the Subordinated Notes or Debt
permitted pursuant to Sections 11.1(c) through 11.1(i)) by the Borrower or any
of its Restricted Subsidiaries. Such prepayment shall be made within three (3)
Business Days after the date of receipt of Net Cash Proceeds of any such
transaction.
(ii) Equity Proceeds. The Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in Section
4.4(b)(vi) below in amounts equal to one hundred percent (100%) of the aggregate
Net Cash Proceeds from any offering of equity securities (other than the Equity
Investment and any stock issued pursuant to the New Stock Incentive Plan) by the
Borrower or any of its Restricted Subsidiaries. Such prepayment shall be made
within three (3) Business Days after the date of receipt of Net Cash Proceeds of
any such transaction.
(iii) Asset Sale Proceeds. No later than one hundred eighty
(180) days following the receipt thereof by the Borrower or any Restricted
Subsidiary thereof, the Borrower shall make mandatory principal prepayments of
the Term Loans in the manner set forth in Section 4.4(b)(vi) below in amounts
equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from the
sale or other disposition or series of related sales or other dispositions of
assets by the Borrower or any of its Restricted Subsidiaries occurring after the
Closing Date (other than any such dispositions permitted under Section 11.5 (a)
through (d)) in excess of $500,000 in any Fiscal Year which have not been
reinvested in similar assets as of the date that is one hundred eighty (180)
days following the receipt thereof by the Borrower or any Restricted Subsidiary
thereof.
(iv) Insurance Proceeds. No later than one hundred eighty
(180) days following the date of receipt by the Borrower or any of its
Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance
policies maintained pursuant to Section 9.3 that relate to the loss of, or
damage to, any assets of the Borrower or a Restricted Subsidiary ("Insurance
Proceeds") which have not been reinvested as of such date in similar assets, the
Borrower shall
28
make mandatory principal prepayments of the Term Loans in the manner set forth
in Section 4.4(b)(vi) below in amounts equal to one hundred percent (100%) of
the aggregate amount of such Insurance Proceeds received by the Borrower or any
of its Restricted Subsidiaries. Notwithstanding any of the foregoing to the
contrary, upon and during the continuance of an Event of Default and upon notice
from the Administrative Agent, all Insurance Proceeds, received by the Borrower
and its Restricted Subsidiaries shall be applied to make prepayments of the Term
Loans, such prepayments to be made within three (3) Business Days after the
Borrower's receipt of such Insurance Proceeds.
(v) Excess Cash Flow. Within ninety (90) days after the end
of any Fiscal Year (or, if earlier, the date of delivery of audited financial
statements pursuant to Section 8.1(c)) commencing with the period from the
Closing Date through the Fiscal Year ending December 31, 2000, for which the
Total Leverage Ratio (i) equals or exceeds 3.00 to 1.00, the Borrower shall make
a mandatory principal prepayment (in the manner set forth in Section 4.4(b)(vi)
below) of the Term Loans in an amount equal to seventy-five percent (75%) of
Excess Cash Flow, if any, for such Fiscal Year and (ii) is less than 3.00 to
1.00 but greater than or equal to 2.00 to 1.00, the Borrower shall make a
mandatory principal prepayment (in the manner set forth in Section 4.4(b)(vi)
below) of the Term Loans in an amount equal to 50% of Excess Cash Flow, if any,
for such Fiscal Year.
(vi) Notice; Manner of Payment. Upon the occurrence of any
event triggering the prepayment requirement under Sections 4.4(b)(i) through and
including 4.4(b)(v), the Borrower shall promptly deliver a Notice of Prepayment
to the Administrative Agent and upon receipt of such notice, the Administrative
Agent shall promptly so notify the Lenders. Each prepayment under this Section
4.4(b) shall be applied as follows: first, to reduce in inverse order of
maturity the remaining scheduled principal installments of the Term Loans,
pursuant to Section 4.3 and second, in the case of a prepayment under clauses
(i), (ii), (iii) or (iv) above only, to the extent of any excess, to reduce
permanently the Revolving Credit Commitment, pursuant to Section 2.6(c).
Amounts prepaid under the Term Loan pursuant to this Section 4.4 may not be
reborrowed and will constitute a permanent reduction in such Term Loan
Commitment. Each prepayment shall be accompanied by any amount required to be
paid pursuant to Section 5.9 hereof.
SECTION 4.5 Term Notes. Each Lender's Term Loan and the
obligation of the Borrower to repay such Term Loan shall be evidenced by a
separate Term Note executed by the Borrower payable to the order of such Lender.
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
5.1, at the election of the Borrower, (i) Revolving Credit Loans and Term Loans
shall bear interest at (A) the Base Rate
29
plus the Applicable Margin as set forth in Section 5.1(c) or (B) the LIBOR Rate
plus the Applicable Margin as set forth in Section 5.1(c) (provided that the
LIBOR Rate shall not be available until three (3) Business Days after the
Closing Date unless the Administrative Agent shall have received an
indemnification agreement with respect to any such LIBOR Rate borrowing in form
and substance satisfactory thereto at least three (3) Business Days prior to the
Closing Date) and (ii) any Swingline Loan shall bear interest at the Base Rate
plus the Applicable Margin as set forth in Section 5.1(c). The Borrower shall
select the rate of interest (Base Rate or LIBOR Rate) and Interest Period, if
any, applicable to any Loan at the time a Notice of Borrowing is given or at the
time a Notice of Conversion/Continuation is given pursuant to Section 5.2. Each
Loan or portion thereof bearing interest based on the Base Rate shall be a "Base
Rate Loan", each Loan or portion thereof bearing interest based on the LIBOR
Rate shall be a "LIBOR Rate Loan." Any Loan or any portion thereof as to which
the Borrower has not duly specified an interest rate as provided herein shall be
deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 5.1(a), shall elect
an interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the date
of advance of or conversion to any LIBOR Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest Period
shall commence on the date on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on
a day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided, that if any Interest Period
with respect to a LIBOR Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business
Day of the relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as
applicable, and Interest Periods shall be selected by the Borrower so as
to permit the Borrower to make mandatory reductions of the Revolving
Credit Commitment pursuant to Section 2.6(b) and the quarterly principal
installment payments pursuant to Section 4.3 without payment of any
amounts pursuant to Section 5.9; and
(v) there shall be no more than ten (10) Interest
Periods in effect at any time.
30
(c) Applicable Margin. The applicable margin per annum provided for
in Section 5.1(a) with respect to any Loan (the "Applicable Margin") (i) in the
case of any Term Loan, shall be equal to 3.75 % if such Term Loan is a LIBOR
Rate Loan, or 2.50% if such Term Loan is a Base Rate Loan, and (ii) in the case
of a Revolving Credit Loan, shall be based upon the table set forth below and
shall be determined and adjusted quarterly on the date (each a "Calculation
Date") ten (10) Business Days after the date by which the Borrower is required
to provide an Officer's Compliance Certificate for the most recently ended
fiscal quarter of the Borrower; provided, however, that (a) the initial
Applicable Margin shall be based on Pricing Level I (as shown below) and shall
remain at Pricing Level I until the first Calculation Date occurring after the
Closing Date and, thereafter the Pricing Level shall be determined by reference
to the Total Leverage Ratio as of the last day of the most recently ended fiscal
quarter of the Borrower preceding the applicable Calculation Date, and (b) if
the Borrower fails to provide the Officer's Compliance Certificate as required
by Section 8.2 for the most recently ended fiscal quarter of the Borrower
preceding the applicable Calculation Date, the Applicable Margin from such
Calculation Date shall be based on Pricing Level I (as shown below) until such
time as an appropriate Officer's Compliance Certificate is provided, at which
time the Pricing Level shall be determined by reference to the Leverage Ratio as
of the last day of the most recently ended fiscal quarter of the Borrower
preceding such Calculation Date. The Applicable Margin shall be effective from
one Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Margin shall be applicable to all Advances then existing or
subsequently made or issued.
----------------------------------------------------------------------------------------------
LIBOR FOR BASE RATE FOR
TOTAL REVOLVING REVOLVING
PRICING LEVEL LEVERAGE RATIO CREDIT FACILITY CREDIT FACILITY
------------- -------------- --------------- ---------------
----------------------------------------------------------------------------------------------
Level I Greater than or equal 3.25% 2.00%
to 4.0 to 1.0
----------------------------------------------------------------------------------------------
Less than 4.0 to 1.0,
but greater than or
Level II equal to 3.5 to 1.0 3.00% 1.75%
----------------------------------------------------------------------------------------------
Less than 3.5 to 1.0,
but greater than 3.0
Level III to 1.0 2.75% 1.50%
----------------------------------------------------------------------------------------------
Level IV Less than 3.0 to 1.0 2.50% 1.25%
----------------------------------------------------------------------------------------------
(d) Default Rate. Subject to Section 12.3, at the discretion of the
Administrative Agent, upon the occurrence and during the continuance of an Event
of Default, (i) the Borrower shall no longer have the option to request LIBOR
Rate Loans or Swingline Loans, (ii) all outstanding LIBOR Rate Loans shall bear
interest at a rate per annum of two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans until the end of the applicable Interest Period
and thereafter at a rate per annum equal to two percent (2%) in excess of the
rate then applicable to Base Rate Loans, and (iii) all outstanding Base Rate
Loans and other Obligations shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans or such
other Obligations. Interest shall continue to accrue on the Notes after the
filing by or against the Borrower of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or debtor relief,
whether state, federal or foreign.
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(e) Interest Payment and Computation. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing September 30, 2000; and interest on each LIBOR Rate Loan
shall be payable on the last day of each Interest Period applicable thereto, and
if such Interest Period extends over three (3) months, at the end of each three
(3) month interval during such Interest Period. Interest on LIBOR Rate Loans and
all fees payable hereunder shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed and interest on Base Rate Loans
shall be computed on the basis of a 365/66-day year and assessed for the actual
number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrower any interest received by the
Lenders in excess of the maximum lawful rate or (ii) shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that the
Borrower not pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrower
under Applicable Law.
SECTION 5.2 Notice and Manner of Conversion or Continuation
of Loans. Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert following the
third Business Day after the Closing Date all or any portion of any outstanding
Base Rate Loans (other than Swingline Loans) in a principal amount equal to
$5,000,000 or any whole multiple of $1,000,000 in excess thereof into one or
more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i)
convert all or any part of its outstanding LIBOR Rate Loans in a principal
amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof
into Base Rate Loans (other than Swingline Loans) or (ii) continue such LIBOR
Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert or
continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as Exhibit E (a
"Notice of Conversion/Continuation") not later than Noon (Charlotte time) three
(3) Business Days before the day on which a proposed conversion or continuation
of such Loan is to be effective specifying (A) the Loans to be converted or
continued, and, in the case of any LIBOR Rate Loan to be converted or continued,
the last day of the Interest Period therefor, (B) the effective date of such
conversion or continuation (which shall be a Business Day), (C) the principal
amount of such Loans to be converted or continued, and (D) the Interest Period
to be applicable to such converted or continued LIBOR Rate Loan. The
Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 5.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrower
shall pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per
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annum equal to 0.50% on the average daily unused portion of the Revolving Credit
Commitment; provided, that the amount of outstanding Swingline Loans shall not
be considered usage of the Revolving Credit Commitment for the purpose of
calculating such commitment fee. The commitment fee shall be payable in arrears
on the last Business Day of each calendar quarter during the term of this
Agreement commencing September 30, 2000, and on the Revolving Credit Maturity
Date. Such commitment fee shall be distributed by the Administrative Agent to
the Lenders pro rata in accordance with the Lenders' respective Revolving Credit
Commitment Percentages.
(b) Administrative Agent's Fee. In order to compensate the
Administrative Agent for structuring the Loans and for its obligations
hereunder, the Borrower agrees to pay to the Administrative Agent, for its
account, the fee set forth in the Supplemental Fee Letter executed by the
Borrower and the Administrative Agent dated July 20, 2000.
(c) Underwriting Fees. The Borrower shall pay to the Administrative
Agent, for the account of the Agents, a non-refundable underwriting fee in
accordance with the terms of the Fee Letter among the Borrower, the Joint Book
Runners and the Agents dated as of July 20, 2000 (the "Fee Letter").
(d) Arranging Fee. The Borrower shall pay to the Joint Book Runners
a nonrefundable arranging fee in accordance with terms of the Fee Letter.
(e) Other Fees. The Borrower shall pay to the Administrative Agent
all other fees set forth in the Fee Letter in accordance with the terms thereof.
SECTION 5.4 Manner of Payment. Each payment by the Borrower
on account of the principal of or interest on the Loans or of any fee,
commission or other amounts (including the Reimbursement Obligation) payable to
the Lenders under this Agreement or any Note shall be made not later than 1:00
p.m. (Charlotte time) on the date specified for payment under this Agreement to
the Administrative Agent at the Administrative Agent's Office for the account of
the Lenders (other than as set forth below) pro rata in accordance with their
respective Revolving Credit Commitment Percentages or Term Loan Percentages, as
applicable, (except as specified below), in Dollars, in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m. (Charlotte
time) on such day shall be deemed a payment on such date for the purposes of
Section 12.1, but for all other purposes shall be deemed to have been made on
the next succeeding Business Day. Any payment received after 2:00 p.m.
(Charlotte time) shall be deemed to have been made on the next succeeding
Business Day for all purposes. Upon receipt by the Administrative Agent of each
such payment, the Administrative Agent shall distribute to each Lender at its
address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Revolving Credit Commitment Percentage or Term
Loan Percentage, as applicable, (except as specified below) and shall wire
advice of the amount of such credit to each Lender. Each payment to the
Administrative Agent of the Issuing Lender's fees or L/C Participants'
commissions shall be made in like manner, but for the account of the Issuing
Lender or the L/C Participants, as the case may be. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender
under Sections 5.8, 5.9, 5.10, 5.11 or 14.2 shall be paid to the Administrative
Agent for the account of the applicable Lender. Subject
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to Section 5.1(b)(ii) if any payment under this Agreement or any Note shall be
specified to be made upon a day which is not a Business Day, it shall be made on
the next succeeding day which is a Business Day and such extension of time shall
in such case be included in computing any interest if payable along with such
payment.
SECTION 5.5 Crediting of Payments and Proceeds. In the event
that the Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 12.2, all payments
received by the Lenders upon the Notes and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by the Borrower hereunder and under the other Loan
Documents, then to all indemnity obligations then due and payable by the
Borrower hereunder, then to all Administrative Agent's and Issuing Lender's fees
then due and payable, then to all commitment and other fees and commissions then
due and payable, then to accrued and unpaid interest on the Swingline Note to
the Swingline Lender, then to the principal amount outstanding under the
Swingline Note to the Swingline Lender, then to accrued and unpaid interest on
the other Notes, the Reimbursement Obligation and any termination payments due
in respect of a Hedging Agreement with any Lender (which such Hedging Agreement
is permitted or required hereunder) (pro rata in accordance with all such
amounts due), then to the principal amount of the other Notes and Reimbursement
Obligation (pro rata in accordance with all such amounts due) and then to the
cash collateral account described in Section 12.2(b) hereof to the extent of any
L/C Obligations then outstanding, in that order.
SECTION 5.6 Adjustments. If any Lender (a "Benefited
Lender") shall at any time receive any payment of all or part of the Obligations
owing to it, or interest thereon, or if any Lender shall at any time receive any
collateral in respect to the Obligations owing to it (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect of the
Obligations owing to such other Lender, or interest thereon, such Benefited
Lender shall purchase for cash from the other Lenders such portion of each such
other Lender's Advances, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders; provided, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another Lender's
Advances may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
SECTION 5.7 Nature of Obligations of Lenders Regarding
Advances; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
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accordance with Sections 2.3(b) and 4.2, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the amount
not made available by such Lender in accordance with the terms hereof, times (b)
the daily average Federal Funds Rate during such period as determined by the
Administrative Agent, times (c) a fraction the numerator of which is the number
of days that elapse from and including such borrowing date to the date on which
such amount not made available by such Lender in accordance with the terms
hereof shall have become immediately available to the Administrative Agent and
the denominator of which is 360. A certificate of the Administrative Agent with
respect to any amounts owing under this Section 5.7 shall be conclusive, absent
manifest error. If such Lender's Revolving Credit Commitment Percentage or Term
Loan Percentage, as applicable, of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days after such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrower. The failure of any Lender to make available its Revolving Credit
Commitment Percentage or Term Loan Percentage, as applicable, of any Loan
requested by the Borrower shall not relieve it or any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Commitment Percentage
or Term Loan Percentage, as applicable, of such Loan available on the borrowing
date, but no Lender shall be responsible for the failure of any other Lender to
make its Revolving Credit Commitment Percentage or Term Loan Percentage, as
applicable, of such Loan available on the borrowing date.
SECTION 5.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect
to any Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via the
Dow Xxxxx Market Screen 3750 or offered to the Administrative Agent or such
Lender for such Interest Period, then the Administrative Agent shall forthwith
give notice thereof to the Borrower. Thereafter, until the Administrative Agent
notifies the Borrower that such circumstances no longer exist, the obligation of
the Lenders to make LIBOR Rate Loans and the right of the Borrower to convert
any Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and
the Borrower shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loan together with accrued
interest thereon, on the last day of the then current Interest Period applicable
to such LIBOR Rate Loan or convert the then outstanding principal amount of each
such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest
Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law 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 any of its Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, shall
make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations
35
hereunder to make or maintain any LIBOR Rate Loan, such Lender shall promptly
give notice thereof to the Administrative Agent and the Administrative Agent
shall promptly give notice to the Borrower and the other Lenders. Thereafter,
until the Administrative Agent notifies the Borrower that such circumstances no
longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans and
the right of the Borrower to convert any Loan or continue any Loan as a LIBOR
Rate Loan shall be suspended and thereafter the Borrower may select only Base
Rate Loans hereunder, and (ii) if any of the Lenders may not lawfully continue
to maintain a LIBOR Rate Loan to the end of the then current Interest Period
applicable thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall
immediately be converted to a Base Rate Loan for the remainder of such Interest
Period.
(c) Increased Costs. If, after the date hereof, the introduction of,
or any change in, any Applicable Law, or 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 of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of
their respective Lending Offices) to any tax, duty or other charge with respect
to any Note, Letter of Credit or Application or shall change the basis of
taxation of payments to any of the Lenders (or any of their respective Lending
Offices) of the principal of or interest on any Note, Letter of Credit or
Application or any other amounts due under this Agreement in respect thereof
(except for changes in the rate of tax on the overall net income of any of the
Lenders or any of their respective Lending Offices imposed by the jurisdiction
in which such Lender is organized or is or should be qualified to do business or
such Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Note; and the result of any of the foregoing is to increase the costs to any of
the Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrower of such fact and demand compensation
therefor and, within fifteen (15) days after such notice by the Administrative
Agent, the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender or Lenders for such increased cost or reduction.
The Administrative Agent will promptly notify the Borrower of any event of which
it has knowledge which will entitle such Lender to compensation pursuant to this
Section 5.8(c); provided, that the Administrative Agent shall incur no liability
whatsoever to the Lenders or the Borrower in the event it fails to do so. The
amount of such compensation shall be determined, in the applicable Lender's sole
discretion, based upon the assumption that such Lender funded its Revolving
Credit Commitment Percentage or Term Loan
36
Percentage, as applicable, of the LIBOR Rate Loans in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrower through the Administrative Agent
and shall be conclusively presumed to be correct save for manifest error.
SECTION 5.9 Indemnity. The Borrower hereby indemnifies each
of the Lenders against any loss or expense which may arise or be attributable to
each Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain any Loan (a) as a consequence of any
failure by the Borrower to make any payment when due of any amount due hereunder
in connection with a LIBOR Rate Loan, (b) due to any failure of the Borrower to
borrow on a date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion or (c) due to any payment, prepayment or conversion of
any LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. The amount of such loss or expense shall be determined, in the
applicable Lender's sole discretion, based upon the assumption that such Lender
funded its Revolving Credit Commitment Percentage or Term Loan Percentage, as
applicable, of the LIBOR Rate Loans in the London interbank market and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth the basis for
determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.
SECTION 5.10 Capital Requirements. If either (a) the
introduction of, or any change in, or in the interpretation of, any Applicable
Law or (b) compliance with any guideline or request from any central bank or
comparable agency or other Governmental Authority (whether or not having the
force of law), has or would have the effect of reducing the rate of return on
the capital of, or has affected or would affect the amount of capital required
to be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to the Commitments and other commitments of
this type, below the rate which such Lender or such other corporation could have
achieved but for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, the Borrower shall pay to
such Lender from time to time as specified by such Lender additional amounts
sufficient to compensate such Lender or other corporation for such reduction. A
certificate as to such amounts submitted to the Borrower and the Administrative
Agent by such Lender, shall, in the absence of manifest error, be presumed to be
correct and binding for all purposes.
SECTION 5.11 Taxes.
(a) Payments Free and Clear. Subject to Section 5.11(e), any and all
payments by the Borrower hereunder or under the Notes or the Letters of Credit
shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholding, and all
liabilities with respect thereto excluding, (i) in the case of each Lender and
the Administrative Agent, income and franchise taxes imposed by the jurisdiction
under the laws of which such Lender or the Administrative Agent (as the case may
be) is organized or is or should be qualified to do business or any political
subdivision thereof and (ii) in the case of each Lender, income and franchise
taxes imposed by the jurisdiction of such Lender's Lending Office or any
37
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct or withhold any
Taxes from or in respect of any sum payable hereunder or under any Note or in
respect of any Letter of Credit to any Lender or the Administrative Agent, (A)
the sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deductions or withholdings
applicable to additional sums payable under this Section 5.11) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
amount such party would have received had no such deductions or withholdings
been made, (B) the Borrower shall make such deductions or withholdings, (C) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with Applicable Law, and (D) the Borrower shall
deliver to the Administrative Agent evidence of such payment to the relevant
taxing authority or other Governmental Authority in the manner provided in
Section 5.11(d). In such event, any Lender so affected shall use commercially
reasonable efforts to cooperate with the Borrower to obtain a refunding of any
Taxes paid by the Borrower pursuant to this Section 5.11(a), and, if any such
Taxes are actually refunded to a Lender, such Lender shall promptly reimburse
the Borrower for the amount actually received.
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit or the other Loan Documents, or the perfection of
any rights or security interest in respect thereof (hereinafter referred to as
"Other Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 5.11) 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,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of
any payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 14.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms W-8ECI or Forms
W-8BEN, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form
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W-8BEN or W-8ECI or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding taxes. Each such Lender
further agrees to deliver to the Borrower, with a copy to the Administrative
Agent, a Form W-8BEN or W-8ECI, or successor applicable forms or manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower,
certifying in the case of a Form W-8BEN or W-8ECI that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes (unless in any such case an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
such forms inapplicable or the exemption to which such forms relate unavailable
and such Lender notifies the Borrower and the Administrative Agent that it is
not entitled to receive payments without deduction or withholding of United
States federal income taxes) and, in the case of a Form W-8BEN or W-8ECI,
establishing an exemption from United States backup withholding tax. In the
event any such Lender fails to deliver any such form, the provisions of Section
5.11 shall not be deemed to be applicable to such Lender.
(f) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 5.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 5.12 Reimbursement Conditions; Replacement of
Lenders. Any requests for payment under Sections 5.8, 5.10 or 5.11 shall be made
within 180 days of the actual incurrence of said costs, or if thereafter, the
Borrower shall have no liability to make said payment. If the Borrower is
required to pay additional amounts to or for the account of any Lender pursuant
to Sections 5.8, 5.10 or 5.11, then such Lender will change the jurisdiction of
its applicable Lending Office if, in the judgment of such Lender, such change
(a) will eliminate or reduce any such additional payment which may thereafter
accrue, (b) will not subject such Lender to any unreimbursed cost or expense and
(c) is not otherwise disadvantageous to such Lender. In addition, if less than
all of the Lenders incur such increased costs or, if less than all of the
Lenders are unable to make loans because of conditions set forth in Section
5.8(b) that are unique to it, the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 14.10), all its interests, rights and
obligations under this Agreement to an Eligible Assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (A) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if an L/C Commitment is being
assigned, the Issuing Bank), which consents shall not unreasonably be withheld,
(B) such Lender shall have received payment of an amount equal to the
outstanding principal of its Revolving Credit Loans, participations in Letters
of Credit and Term Loans and all accrued interest on the foregoing, accrued fees
and all other amounts payable to such Lender hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (C) such assignment will result
in a reduction of the compensation or payments requested by such Lender. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by
39
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 5.13 Security. The Obligations of the Borrower shall
be secured as provided in the Security Documents.
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1 Closing. The closing shall take place at the
offices of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. at 10:00 a.m. on
September 14, 2000 or on such other date and time as the parties hereto shall
mutually agree.
SECTION 6.2 Conditions to Closing and Initial Advances. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Revolving Credit
Notes, the Term Notes, the Swingline Note and the Security Documents, together
with any other applicable Loan Documents, shall have been duly authorized,
executed and delivered to the Administrative Agent by the parties thereto, shall
be in full force and effect and no default or event of default shall exist
thereunder, and the Borrower shall have delivered original counterparts thereof
to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrower. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrower contained in this
Agreement and the other Loan Documents are true, correct and complete; that the
Borrower is not in violation of any of the covenants contained in this Agreement
and the other Loan Documents; that, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has occurred and
is continuing; and that the Borrower has satisfied each of the closing
conditions.
(ii) Certificate of Secretary of the Borrower and the
Restricted Subsidiaries. The Administrative Agent shall have received a
certificate of the secretary or assistant secretary of each of the Borrower and
the Restricted Subsidiaries certifying as to the incumbency and genuineness of
the signature of each officer of the Borrower or such Restricted Subsidiary
executing Loan Documents to which the Borrower or such Restricted Subsidiary is
a party and certifying that attached thereto is a true, correct and complete
copy of (A) the articles of incorporation of the Borrower or such Restricted
Subsidiary and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of incorporation, (B) the
bylaws of the Borrower or such Restricted Subsidiary as in effect on the date of
such certifications, (C) resolutions duly adopted by the Board of Directors of
the Borrower or such
40
Restricted Subsidiary authorizing the borrowings contemplated hereunder or the
delivery of the Guaranty Agreement, as the case may be, and the execution,
delivery and performance of each other Loan Document to which the Borrower or
such Restricted Subsidiary is a party, and (D) each certificate required to be
delivered pursuant to Section 6.2(b)(iii).
(iii) Certificates of Good Standing. The
Administrative Agent shall have received long-form certificates as of a recent
date of the good standing of the Borrower, each Restricted Subsidiary and the
Unrestricted Subsidiary, in each case, under the laws of its respective
jurisdiction of organization and, to the extent requested by the Administrative
Agent, each other jurisdiction where the Borrower or such Restricted Subsidiary
is qualified to do business and a certificate of the relevant taxing authorities
of such jurisdictions certifying that such Person has filed required tax returns
and owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent
shall have received favorable opinions of counsel to the Borrower addressed to
the Administrative Agent and the Lenders with respect to the Borrower, the Loan
Documents and such other matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have
received copies of the United States Internal Revenue Service forms required by
Section 5.11(e) hereof, if applicable.
(c) Collateral.
(i) Filings and Recordings. All filings and
recordations that are necessary to perfect the security interests of the Lenders
in the collateral described in the Security Documents shall have been received
by the Administrative Agent and the Administrative Agent shall have received
evidence satisfactory to the Administrative Agent that upon such filings and
recordations such security interests constitute valid and perfected first
priority Liens therein.
(ii) Pledged Collateral. The Administrative Agent
shall have received (A) original stock certificates or other certificates
evidencing the capital stock or other ownership interests pledged pursuant to
any Collateral Agreement, together with an undated stock power for each such
certificate duly executed in blank by the registered owner thereof and (B) each
original promissory note pledged pursuant to the Pledge Agreement.
(iii) Lien Search. The Administrative Agent shall have
received the results of a Lien search (including a search as to judgments,
pending litigation and tax matters) made against the Borrower and each
Restricted Subsidiary under the Uniform Commercial Code (or applicable judicial
docket) as in effect in any state in which any of their respective assets are
located, indicating among other things that their respective assets are free and
clear of any Lien except for Liens permitted hereunder.
(iv) Hazard and Liability Insurance. The
Administrative Agent shall have received certificates of insurance, evidence of
payment of all insurance premiums for the current policy year of each, and, if
requested by the Administrative Agent, copies (certified by a
41
Responsible Officer) of insurance policies in the form required under the
Security Documents and otherwise in form and substance reasonably satisfactory
to the Administrative Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The
Borrower shall have obtained all necessary approvals, authorizations and
consents of any Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this Agreement and
the other Loan Documents.
(ii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain, or prohibit,
or to obtain substantial damages in respect of, or which is related to or arises
out of this Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby, or which, in the Administrative
Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent
shall have received the most recent audited Consolidated financial statements of
the Borrower and its Subsidiaries, all in form and substance satisfactory to the
Administrative Agent and prepared in accordance with GAAP.
(ii) Financial Condition Certificate. The Borrower
shall have delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as accurate by
a Responsible Officer, that (A) the Borrower and each of its Restricted
Subsidiaries are each Solvent, (B) the Borrower's and each Restricted
Subsidiary's payables are current and not past due, (C) attached thereto is
Schedule 1A, showing certain EBITDA adjustments which are satisfactory to the
Administrative Agent, (D) the financial projections previously delivered to the
Administrative Agent represent the good faith estimates (utilizing reasonable
assumptions) of the financial condition and operations of the Borrower and its
Restricted Subsidiaries and (E) attached thereto is a calculation of (1) the
Applicable Margin pursuant to Section 5.1(c), (2) the Working Capital Liquidity
Ratio determined as of the most recent month ending not more than thirty (30)
days prior to the Closing Date, demonstrating, to the satisfaction of the
Administrative Agent, that such ratio is equal to or greater than 1.0 to 1.0,
(3) the Senior Leverage Ratio determined on a pro forma basis as of the Closing
Date demonstrating, to the satisfaction of the Administrative Agent, that such
ratio is not greater than 2.95 to 1.0, (4) the Total Leverage Ratio determined
on a pro forma basis as of the Closing Date demonstrating, to the satisfaction
of the Administrative Agent, that such ratio is not greater than 4.70 to 1.0 and
(5) EBITDA for the twelve (12) consecutive months ending on or immediately prior
to the Closing Date as determined on a pro forma basis as of the Closing Date
demonstrating, to the reasonable
42
satisfaction of the Administrative Agent, that such EBITDA equals or exceeds
$54,000,000; provided that for purposes of this Section 6.2(e)(ii) only, the
Senior Leverage Ratio and Total Leverage Ratio shall be calculated to include,
without duplication, (A) the issuance of Letters of Credit in an aggregate face
amount of $2,500,000 for the replacement of existing letters of credit of the
Borrower and (B) the Initial Commercial Business Investment, regardless of
whether or not such issuance or investment has accrued on or before the Closing
Date.
(iii) Payment at Closing; Fee Letters. The Borrower
shall have paid to the Administrative Agent and the Lenders the fees set forth
or referenced in Section 5.3 and any other accrued and unpaid fees or
commissions due hereunder (including, without limitation, legal fees and
expenses) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(iv) Unrestricted Subsidiary. The Unrestricted
Subsidiary (A) shall have been duly organized, and shall be validly existing and
in good standing under the jurisdiction of its organization, (B) shall have
delivered a certified copy of its certificate of incorporation and by-laws to
the Administrative Agent, (C) shall own all of the assets previously owned by
the Borrower's Commercial Networked Security Management division, and (D) shall
have received net tangible assets from the Borrower, including the assets
referred to in clause (C) above and equity contributions from the Borrower, in
an amount not to exceed $8,000,000.
(v) Rating. The Borrower shall have delivered to the
Administrative Agent evidence of a rating of the senior secured Debt of the
Borrower from each of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service, Inc., and such rating
shall be satisfactory to the Administrative Agent.
(f) Related Transactions.
(i) Equity Investment. The Borrower shall have
received a minimum of $4,000,000 in Net Cash Proceeds from the issuance of
common stock of the Borrower on terms and conditions reasonably satisfactory to
the Administrative Agent (the "Equity Investment").
(ii) Subordinated Notes. The Borrower shall have
received a minimum of $95,000,000 in Net Cash Proceeds from the issuance of the
Subordinated Notes on terms and conditions reasonably satisfactory to the
Administrative Agent.
(g) Miscellaneous.
(i) Refinancing of the Existing Loans. On the
Closing Date, (A) all Existing Loans made by any Existing Lender who is not a
Lender hereunder shall be refinanced in full, and the commitments and other
obligations and rights (except as expressly set forth in the Existing Credit
Agreement) of such Existing Lender shall have been assumed on the Closing Date
by a Lender hereunder (and upon such assumption such Existing Lender shall have
no obligations hereunder), (B) all outstanding Existing Loans shall be deemed
Term Loans
43
hereunder and the Administrative Agent shall make such transfers of funds as are
necessary in order that the outstanding balance of such Term Loans, together
with any Term Loans funded on the Closing Date, reflect the Term Loan
Commitments of the Lenders hereunder, (C) all outstanding letters of credit
issued by any Existing Lender pursuant to the Existing Credit Agreement (such
letters of credit, the "Existing Letters of Credit") shall be deemed Letters of
Credit hereunder, (D) there shall have been paid in cash (or otherwise credited)
in full all accrued but unpaid interest due on the Existing Loans to the Closing
Date, (E) there shall have been paid in cash in full all accrued but unpaid fees
under the Existing Credit Agreement due to the Closing Date and all other
amounts, costs and expenses then owing to any of the Existing Lenders and First
Union, as administrative agent under the Existing Credit Agreement, and (F) all
outstanding promissory notes issued by the Borrower to the Existing Lenders
under the Existing Credit Agreement shall be deemed canceled and the originally
executed copies thereof shall be promptly returned to the Administrative Agent
who shall forward such notes to the Borrower.
(ii) Existing Bridge Facility. The Existing Bridge
Facility shall be repaid in full and terminated and all collateral security
therefor shall be released, and the Administrative Agent shall have received a
pay-off letter in form and substance satisfactory to it evidencing such
repayment, termination, reconveyance and release.
(iii) Other Documents. All opinions, certificates and
other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and substance to
the Administrative Agent. The Administrative Agent shall have received copies of
all other documents, certificates and instruments reasonably requested thereby,
with respect to the transactions contemplated by this Agreement.
SECTION 6.3 Conditions to All Advances. The obligations of
the Lenders to make any Advances (including the initial Advance), convert or
continue any Loan and/or the Issuing Lender to issue or extend any Letter of
Credit are subject to the satisfaction of the following conditions precedent on
the relevant borrowing continuation, conversion, issuance or extension date:
(a) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing or a Notice of Term Loan Borrowing, as
applicable, from the Borrower (which in both cases shall include a certification
by the chief financial officer or the treasurer of the Borrower demonstrating,
to the satisfaction of the Administrative Agent, compliance with the Working
Capital Liquidity Ratio pursuant to Section 10.6 as of the date of such Advance
on a pro forma basis after giving effect to the proposed Advance) in accordance
with Section 2.3(a) or Section 4.2, as applicable, and a Notice of Account
Designation specifying the account or accounts to which the proceeds of any
Loans made after the Closing Date are to be disbursed.
(b) Continuation of Representations and Warranties. The
representations and warranties contained in Article VII shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date; except for any representation and warranty made as
of an earlier date, which representation and warranty shall remain true and
correct as of such earlier date.
44
(c) No Existing Default. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing date with respect to such Loan
or after giving effect to the Loans to be made on such date or (ii) on the issue
date with respect to such Letter of Credit or after giving effect to the
issuance of such Letter of Credit on such date.
(d) Additional Documents. The Administrative Agent shall have
received each additional document, instrument, legal opinion or other item
reasonably requested by it.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 7.1 Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Advances, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder that:
(a) Corporate Existence and Power. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted (except where the failure to be in
good standing or possess such corporate power or authority would not reasonably
be expected to have a Material Adverse Effect) and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization except where the failure to so qualify would not reasonably be
expected to have a Material Adverse Effect. The jurisdictions in which the
Borrower and its Restricted Subsidiaries are organized and qualified to do
business as of the Closing Date are described on Schedule 7.1(a).
(b) Corporate Authority; Binding Effect. Each of the Borrower and
its Restricted Subsidiaries has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by the duly
authorized officers of each of the Borrower and its Restricted Subsidiaries
party thereto, and each such document constitutes the legal, valid and binding
obligation of each of the Borrower and its Restricted Subsidiaries party
thereto, enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
(c) Subsidiaries. Each Restricted Subsidiary and each Inactive
Subsidiary of the Borrower as of the Closing Date is listed on Schedule 7.1(c).
On or after the date which is one hundred-eighty (180) days after the Closing
Date, no Inactive Subsidiary conducts active business operations and no Inactive
Subsidiary has assets in excess of $1,000,000. As of the Closing Date,
45
the capitalization of the Borrower and its Restricted Subsidiaries consists of
the number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 7.1(c). All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable, with no personal liability attaching to the ownership thereof,
and not subject to any preemptive or similar rights. The shareholders of the
Restricted Subsidiaries of the Borrower and the number of shares owned by each
as of the Closing Date are described on Schedule 7.1(c). As of the Closing Date,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Borrower or its Restricted Subsidiaries, except
as described on Schedule 7.1(c).
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the Borrower and its Restricted
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Advances hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Borrower or any of its Restricted
Subsidiaries, (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents of
the Borrower or any of its Restricted Subsidiaries or any indenture, agreement
or other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person,
(iii) result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such Person other
than Liens arising under the Loan Documents or (iv) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement.
(e) Compliance with Law; Governmental Approvals. Each of the
Borrower and its Restricted Subsidiaries (i) has all Governmental Approvals
required by any Applicable Law for it to conduct its business, each of which is
in full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of its knowledge, threatened
attack by direct or collateral proceeding, (ii) is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties and (iii) has
timely filed all material reports, documents and other materials required to be
filed by it under all Applicable Laws with any Governmental Authority and has
retained all material records and documents required to be retained by it under
Applicable Law except where the failure to obtain or comply with such
Governmental Approval or be in such compliance or file such reports, documents
or other materials would not reasonably be expected to have a Material Adverse
Effect.
(f) Tax Returns and Payments. Except as otherwise disclosed on
Schedule 7.1(f), each of the Borrower and its Restricted Subsidiaries has duly
filed or caused to be filed all federal, state, local and other tax returns
required by Applicable Law to be filed and the failure of which to file would
reasonably be expected to have a Material Adverse Effect, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable. Such returns accurately
reflect in all material respects all liability for taxes of the Borrower and its
46
Restricted Subsidiaries for the periods covered thereby. As of the Closing Date,
there is no ongoing audit or examination or, to the knowledge of the Borrower,
other investigation by any Governmental Authority of the tax liability of the
Borrower and its Restricted Subsidiaries. As of the Closing Date, no
Governmental Authority has asserted any Lien or other claim against the Borrower
or any Restricted Subsidiary thereof with respect to unpaid taxes which has not
been discharged or resolved. The charges, accruals and reserves on the books of
the Borrower and any of its Restricted Subsidiaries in respect of federal,
state, local and other taxes for all Fiscal Years and portions thereof since the
organization of the Borrower and any of its Restricted Subsidiaries are in the
judgment of the Borrower adequate, and the Borrower does not anticipate any
additional taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each of the Borrower and its
Restricted Subsidiaries owns or possesses rights to use all franchises,
licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, service xxxx,
service xxxx rights, trade names, trade name rights, copyrights and rights with
respect to the foregoing which the failure to own or possess would reasonably be
expected to have a Material Adverse Effect. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such rights, and neither the Borrower nor any Restricted
Subsidiary thereof is liable to any Person for infringement under Applicable Law
with respect to any such rights as a result of its business operations, except
where such revocation or liability could not reasonably be expected to have a
Material Adverse Effect.
(h) Environmental Matters. Except as set forth in Schedule 7.1(h) or
on Schedule A to the Environmental Certificate delivered in connection with the
closing of the Existing Credit Agreement (a copy of which Schedule A to the
Environmental Certificate is attached to Schedule 7.1(h)), the Borrower and each
of its Restricted Subsidiaries are in compliance in all material respects with
all applicable federal, state and local laws, ordinances and regulations
relating to safety and industrial hygiene or to the environmental condition,
including, without limitation, all Environmental Laws in jurisdictions in which
the Borrower or any of its Restricted Subsidiaries owns or operates, or has
owned or operated, a facility or site, or arranges or has arranged for disposal
or treatment of Hazardous Materials, accepts or has accepted for transport any
Hazardous Materials, or holds or has held any interest in real property or
otherwise. No demand, claim, notice, suit, suit in equity, action,
administrative action or investigation whether brought by any Governmental
Authority, private person or entity or otherwise, arising under, relating to or
in connection with any Environmental Laws is pending against the Borrower, or
any of its Restricted Subsidiaries, any real property in which the Borrower or
any of its Restricted Subsidiaries holds or has held an interest or any past or
present operation of the Borrower or any of its Restricted Subsidiaries, except
as set forth in Schedule 7.1(h) hereto or on Schedule A to the Environmental
Certificate attached thereto. Neither the Borrower nor any of its Restricted
Subsidiaries (a) to the best of the Borrower's knowledge, is the subject of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release of any Hazardous Materials into the environment, (b) has
received any notice of any Hazardous Materials in, or upon, any of its
properties in violation of any Environmental Laws, or (c) knows of any basis for
any such investigation, notice or violation, except as disclosed in Schedule
7.1(h) hereto or on Schedule A to the Environmental Certificate attached
thereto, none of which will have a Material Adverse Effect. Except as set forth
in Schedule 7.1(h) hereto or on Schedule A to the Environmental Certificate
47
attached thereto, no release, threatened release or disposal of Hazardous
Materials is occurring or has occurred on, under or to any property of the
Borrower or any of its Restricted Subsidiaries in violation of any Environmental
Laws.
(i) ERISA. The Borrower, its Restricted Subsidiaries, their ERISA
Affiliates and their respective Employee Benefit Plans are in compliance in all
material respects with those provisions of ERISA and of the Code which are
applicable with respect to any Employee Benefit Plan. No Prohibited Transaction
and no Reportable Event for which the 30-day notice period is not waived by the
applicable regulations, has occurred with respect to any such Employee Benefit
Plan to the extent any such failure could reasonably be expected to result in a
Material Adverse Effect. Except as set forth on Schedule 7.1(i) hereto, neither
the Borrower, any of its Restricted Subsidiaries nor any of their ERISA
Affiliates is an employer with respect to any Multiemployer Plan. The Borrower,
its Restricted Subsidiaries and their ERISA Affiliates have met the minimum
funding requirements under ERISA and the Code with respect to each of their
respective Employee Benefit Plans, if any, and have not incurred any current,
outstanding liability to the PBGC or any Employee Benefit Plan. The execution,
delivery and performance of this Agreement, the Notes, the other Loan Documents
and the other documents executed or to be executed in connection herewith or
therewith do not constitute a Prohibited Transaction. There is no material
Unfunded Benefit Liability, determined in accordance with Section 4001(a)(18) of
ERISA, with respect to any Plan of the Borrower, any of its Restricted
Subsidiaries or their ERISA Affiliates.
(j) Margin Stock. Neither the Borrower nor any Restricted Subsidiary
thereof is engaged principally or as one of its activities in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" (as each such term is defined or used, directly or indirectly, in
Regulation U of the Board of Governors of the Federal Reserve System). No part
of the proceeds of any of the Loans or Letters of Credit will be used for
purchasing or carrying margin stock or for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation T, U or X of such Board
of Governors.
(k) Government Regulation. Neither the Borrower nor any Restricted
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Borrower nor any Restricted
Subsidiary thereof is, or after giving effect to any Advance will be, subject to
regulation under the Public Utility Holding Company Act of 1935 or the
Interstate Commerce Act, each as amended, or any other Applicable Law which
limits its ability to incur or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 7.1(l) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Restricted
Subsidiaries in effect as of the Closing Date not listed on any other Schedule
hereto; other than as set forth in Schedule 7.1(l), each such Material Contract
is, and after giving effect to the consummation of the transactions contemplated
by the Loan Documents will be, in full force and effect in accordance with the
terms thereof. Neither the Borrower nor any Restricted Subsidiary (nor, to the
knowledge of the Borrower, any other party thereto) is in breach of or in
default under any Material Contract in any material respect.
48
(m) Employee Relations. Each of the Borrower and its Restricted
Subsidiaries has a stable work force in place and is not, as of the Closing
Date, party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees except as set forth on
Schedule 7.1(m). The Borrower knows of no pending, threatened or contemplated
strikes, work stoppage or other collective labor disputes involving its
employees or those of its Restricted Subsidiaries.
(n) Broker's Fees. Neither the Borrower nor any of its Restricted
Subsidiaries has retained an investment banker, broker or finder in connection
with the transactions contemplated by this Agreement and no broker's fees or
commissions are payable by the Borrower or any Subsidiary thereof in connection
therewith as a result of any action or inaction on its part.
(o) Financial Statements. The (i) audited Consolidated balance sheet
of the Borrower and its Restricted Subsidiaries as of December 31, 1999 and the
related audited statements of income and retained earnings and cash flows for
the Fiscal Year then ended and (ii) unaudited Consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of June 30, 2000 and related
unaudited interim statements of income and retained earnings, copies of which
have been furnished to the Administrative Agent and each Lender, are complete
and correct and fairly present on a Consolidated basis the assets, liabilities
and financial position of the Borrower and its Restricted Subsidiaries as at
such dates, and the results of the operations and changes of financial position
for the periods then ended (other than customary year-end adjustments for
unaudited financial statements). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP.
The Borrower and its Restricted Subsidiaries have no Debt or off-balance sheet
or contingent indebtedness, obligation or other unusual forward or long-term
commitment which is not fairly reflected in the foregoing financial statements
or in the notes thereto.
(p) No Material Adverse Change. Since December 31, 1999, there has
been no material adverse change in the business, properties, operations or
condition (financial or otherwise) of the Borrower and its Restricted
Subsidiaries, taken as a whole, and no event has occurred or condition arisen
that could reasonably be expected to have a Material Adverse Effect.
(q) Solvency. After giving effect to this Agreement, the Notes, the
other Loan Documents and the transactions contemplated hereby, the Security
Documents and the performance of the Borrower and the Restricted Subsidiaries
under this Agreement and the Guaranty Agreements, on a Consolidated basis, (a)
the present salable value and fair value of the Borrower's and the Restricted
Subsidiaries' property are (i) greater than the total amount of their
liabilities (including identified contingent liabilities, valued as the maximum
amount that could reasonably be expected to become an actual or matured
liability), and (ii) greater than the amount that would be required to pay their
probable aggregate liability on their then existing debts as they become
absolute and matured; (b) the Borrower's and the Restricted Subsidiaries'
property does not constitute an unreasonable amount of capital in relation to
their business or any contemplated or undertaken transaction; and (c) the
Borrower and the Restricted Subsidiaries do not intend to incur, or believe that
they will incur, debts beyond their ability to pay such debts as they become due
(the foregoing financial condition, "Solvent"). This Agreement and the other
documents executed in
49
connection herewith have been delivered by the Borrower and the Restricted
Subsidiaries in good faith and in exchange for equivalent consideration. Neither
the Borrower nor any Restricted Subsidiary has executed such documents, or made
any transfer or incurred any obligations thereunder or in connection therewith,
with the actual intent to hinder, defraud or delay either present or future
creditors.
(r) Titles to Properties. Each of the Borrower and its Restricted
Subsidiaries has such title to the real property owned or leased by it as is
necessary or desirable to the conduct of its business and valid and legal title
to all of its personal property and assets, including, but not limited to, those
reflected on the balance sheets of the Borrower and its Restricted Subsidiaries
delivered pursuant to Section 7.1(o), except those which have been disposed of
by the Borrower or its Restricted Subsidiaries subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Restricted Subsidiary thereof is subject to any Lien, except Liens permitted
pursuant to Section 11.2. No financing statement under the UCC of any state
which names the Borrower or any Restricted Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction and neither the Borrower nor
any Restricted Subsidiary thereof has signed any such financing statement or any
security agreement authorizing any secured party thereunder to file any such
financing statement, except to perfect those Liens permitted by Section 11.2
hereof.
(t) Debt and Guaranty Obligations. Schedule 7.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Restricted Subsidiaries as of the Closing Date in excess of $1,000,000. The
Borrower and its Restricted Subsidiaries have performed and are in compliance
with all of the terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of the Borrower or its Restricted
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and
set forth on Schedule 7.1(u), there are no actions, suits or proceedings pending
nor, to the best knowledge of the Borrower and/or each Restricted Subsidiary,
threatened against or in any other way relating adversely to or affecting the
Borrower or any Restricted Subsidiary thereof or any of their respective
properties in any court or before any arbitrator of any kind or before or by any
Governmental Authority which would reasonably be expected to have a Material
Adverse Effect.
(v) Absence of Defaults. No event has occurred or is continuing
which constitutes a Default or an Event of Default, or which constitutes, or
which with the passage of time or giving of notice or both would constitute, a
default or event of default by the Borrower or any Restricted Subsidiary thereof
under any Material Contract or judgment, decree or order to which the Borrower
or any of its Restricted Subsidiaries is a party or by which the Borrower or any
of its Restricted Subsidiaries or any of their respective properties may be
bound or which would require the Borrower or any of its Restricted Subsidiaries
to make any payment in excess of $1,000,000 thereunder prior to the scheduled
maturity date therefor.
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(w) Senior Debt Status. The Obligations of the Borrower and each of
its Restricted Subsidiaries under this Agreement and each of the other Loan
Documents ranks and shall continue to rank at least senior in priority of
payment to all Subordinated Debt and all senior unsecured Debt of each such
Person and is designated as "Senior Indebtedness" under all instruments and
documents, now or in the future, relating to all Subordinated Debt and all
senior unsecured Debt of such Person.
(x) Government Contracts. No notice of suspension, debarment, cure
notice, show cause notice or notice of termination for default which could
reasonably be expected to have a Material Adverse Effect has been issued by the
U.S. Government to the Borrower or any Restricted Subsidiary, and neither the
Borrower nor any Restricted Subsidiary is a party to any pending, or to the
Borrower's or any Restricted Subsidiary's knowledge threatened, suspension,
debarment, termination for default issued by the U.S. Government or other
adverse U.S. Government action or proceeding in connection with any contract
with the U.S. Government which could reasonably be expected to have a Material
Adverse Effect.
(y) Bank Accounts. Except for the accounts listed on Schedule
7.1(y), none of the Borrower or its Restricted Subsidiaries maintains any
account, agreement or safe deposit arrangement in excess of $250,000 in any one
account, and the amounts maintained in any accounts that are not listed on
Schedule 7.1(y) do not exceed $2,000,000 in the aggregate.
(z) Disclosure. No report or other information furnished in writing
or on behalf of the Borrower or any of its Restricted Subsidiaries to the
Administrative Agent or any Lender in connection with the negotiation or
administration of this Agreement contains any material misstatement of fact or
omits to state any material fact or any fact necessary to make the statements
contained therein not misleading when made or deemed made. Neither this
Agreement, the Notes, the other Loan Documents, the Confidential Information
Memorandum dated August, 2000, the other documents executed or to be executed in
connection herewith nor any other document, certificate, or report or statement
or other information furnished to the Administrative Agent and the Lenders by or
on behalf of the Borrower or any of its Restricted Subsidiaries in connection
with the transactions contemplated hereby or thereby contains any untrue
statement of a material fact or omits to state a material fact in order to make
the statements contained herein and therein not misleading when made or deemed
made. There is no fact known to the Borrower or any Restricted Subsidiary which
presently has resulted in a Material Adverse Effect, or which in the future
could reasonably be expected to have a Material Adverse Effect, which has not
been set forth in this Agreement or in the other documents, certificates,
statements, reports and other information furnished in writing to the
Administrative Agent and the Lenders by or on behalf of the Borrower or any of
its Restricted Subsidiaries in connection with the transactions contemplated
hereby.
SECTION 7.2 Survival of Representations and Warranties, Etc.
All representations and warranties set forth in this Article VII and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date
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(except those that are expressly made as of a specific date), shall survive the
Closing Date and shall not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 14.11, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 14.1 and to the Lenders at their respective addresses as set
forth on Schedule 1, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
SECTION 8.1 Financial Statements and Projections.
(a) Monthly Financial Statements. As soon as practicable and in any
event within thirty (30) days after the end of each month (other than the last
month of a Fiscal Year), an unaudited Consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries (including the Restricted
Subsidiaries and the Unrestricted Subsidiary) as of the close of such month and
unaudited Consolidated and consolidating statements of income, retained earnings
and cash flows for the month then ended and that portion of the Fiscal Year then
ended all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the corresponding period in the
preceding Fiscal Year and prepared by the Borrower in accordance with GAAP and,
if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by the chief financial officer of
the Borrower to present fairly in all material respects the financial condition
of the Borrower and its Subsidiaries on a Consolidated and consolidating basis
as of their respective dates and the results of operations of the Borrower and
its Subsidiaries for the respective periods then ended, subject to normal year
end adjustments. The financial statements delivered pursuant to this Section
8.1(a) shall be accompanied by (i) an updated Schedule 1A to the certificate of
the Borrower provided pursuant to Section 6.2(e)(ii), showing monthly EBITDA
adjustments of the Borrower and its Restricted Subsidiaries for the last twelve
months then ended, in form and substance satisfactory to the Administrative
Agent, and (ii) a schedule providing, in form and substance satisfactory to the
Administrative Agent, a consolidating break-out of the Borrower and the
Restricted Subsidiaries taken as a whole, on the one hand, and the Unrestricted
Subsidiary, on the other hand.
(b) Quarterly Financial Statements. As soon as practicable and in
any event within thirty (30) days after the end of each fiscal quarter (other
than the last fiscal quarter of a Fiscal Year), an unaudited Consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries (including the
Restricted Subsidiaries and the Unrestricted Subsidiary) as of the close of such
fiscal quarter and unaudited Consolidated and consolidating statements of
income, retained earnings and cash flows for the fiscal quarter then ended and
that portion of the Fiscal Year then ended all in reasonable detail setting
forth in comparative form the corresponding figures as of the
52
end of and for the corresponding period in the preceding Fiscal Year and
prepared by the Borrower in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operations of
any change in the application of accounting principles and practices during the
period, and certified by the chief financial officer of the Borrower to present
fairly in all material respects the financial condition of the Borrower and its
Subsidiaries on a Consolidated and consolidating basis as of their respective
dates and the results of operations of the Borrower and its Subsidiaries for the
respective periods then ended, subject to normal year end adjustments. The
financial statements delivered pursuant to this Section 8.1(b) shall be
accompanied by a schedule providing, in form and substance satisfactory to the
Administrative Agent, a consolidating break-out of the Borrower and the
Restricted Subsidiaries taken as a whole, on the one hand, and the Unrestricted
Subsidiary, on the other hand.
(c) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Subsidiaries (including the
Restricted Subsidiaries and the Unrestricted Subsidiary) as of the close of such
Fiscal Year and audited Consolidated statements of income, retained earnings and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures as
of the end of and for the preceding Fiscal Year and prepared by an independent
certified public accounting firm acceptable to the Administrative Agent in
accordance with GAAP and, if applicable, containing disclosure of the effect on
the financial condition or results of operations of any change in the
application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by the Borrower or any of
its Subsidiaries or with respect to accounting principles followed by the
Borrower or any of its Subsidiaries not in accordance with GAAP. The financial
statements delivered pursuant to this Section 8.1(b) shall be accompanied by a
schedule reviewed by such accountants providing, in form and substance
reasonably satisfactory to the Administrative Agent, a consolidating break-out
of the Borrower and the Restricted Subsidiaries taken as a whole, on the one
hand, and the Unrestricted Subsidiary, on the other hand.
(d) Annual Business Plan and Financial Projections. As soon as
practicable and in any event no later than the beginning of each Fiscal Year, a
business plan of the Borrower and its Restricted Subsidiaries for the ensuing
four (4) fiscal quarters, such plan to be prepared in accordance with GAAP and
to include, on a quarterly basis, the following: a quarterly operating and
capital budget, a projected income statement, statement of cash flows and
balance sheet and a report containing management's discussion and analysis of
such projections, accompanied by a certificate from the chief financial officer
of the Borrower to the effect that, to the best of such officer's knowledge,
such projections are good faith estimates (utilizing reasonable assumptions) of
the financial condition and operations of the Borrower and its Restricted
Subsidiaries for such period.
(e) Securities and Exchange Commission Reports. Promptly after
sending or filing thereof, copies of all reports, proxy statements, registration
statements, prospectuses and financial statements which the Borrower or any of
its Restricted Subsidiaries sends to or files with any of their respective
security holders or any securities exchange or the Securities and Exchange
Commission or any successor agency thereto.
53
SECTION 8.2 Officer's Compliance Certificate. At each time
financial statements are delivered pursuant to Sections 8.1 (a), (b) or (c) and
at such other times as the Administrative Agent shall reasonably request, a
certificate of the chief financial officer or the treasurer of the Borrower in
the form of Exhibit F attached hereto (an "Officer's Compliance Certificate").
SECTION 8.3 Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 8.1(c), a certificate of the
independent public accountants certifying such financial statements addressed to
the Administrative Agent for the benefit of the Lenders stating that in making
the examination necessary for the certification of such financial statements,
they obtained no knowledge of any Default or Event of Default in respect of
Articles X or XI hereof or, if such is not the case, specifying such Default or
Event of Default and its nature and period of existence.
SECTION 8.4 Other Reports.
(a) Within thirty (30) days of the receipt thereof, copies of all
reports, if any, submitted to the Borrower or its Board of Directors by its
independent public accountants in connection with their auditing function,
including, without limitation, any management report and any management
responses thereto;
(b) Promptly upon delivery or receipt (as applicable) thereof,
provide the Administrative Agent written copies of all notices, certificates,
reports or other information delivered or received by or on behalf of the
Borrower or any Restricted Subsidiary thereof in connection with the
Subordinated Notes; and
(c) Such other information regarding the operations, business
affairs and financial condition of the Borrower or any of its Restricted
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
SECTION 8.5 Notice of Litigation and Other Matters. Promptly
provide (but in no event later than ten (10) days after an officer of the
Borrower obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any court
or before any arbitrator against or involving the Borrower or any Restricted
Subsidiary thereof or any of their respective properties, assets or businesses,
in each case, which could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any violation received by the Borrower or any
Restricted Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws which in any such case
could reasonably be expected to have a Material Adverse Effect;
54
(c) any labor controversy that has resulted in, or, in management's
judgment, is reasonably likely to result in, a strike or other work action
against the Borrower or any Restricted Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding $250,000
that may be assessed against or to the Borrower's knowledge, threatened against
the Borrower or any Restricted Subsidiary thereof;
(e) (i) any Default or Event of Default, or (ii) any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any contract to which the
Borrower or any of its Restricted Subsidiaries is a party or by which the
Borrower or any Restricted Subsidiary thereof or any of their respective
properties may be bound, which event could reasonably be expected to have a
Material Adverse Effect;
(f) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof), (ii) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by the Borrower or any ERISA Affiliate
from a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrower
obtaining knowledge or reason to know that the Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of ERISA; and
(g) any event which makes any of the representations set forth in
Section 7.1 inaccurate in any material respect.
SECTION 8.6 Accuracy of Information. All written
information, reports, statements and other papers and data furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender whether
pursuant to this Article VIII or any other provision of this Agreement, or any
of the Security Documents, shall be, at the time the same is so furnished,
comply with the representations and warranties set forth in Section 7.1(z).
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 14.11, the Borrower will, and will cause each of its
Restricted Subsidiaries to:
SECTION 9.1 Preservation of Legal Existence and Related
Matters. Except as permitted by Section 11.4, preserve and maintain its separate
legal existence and all rights, franchises, licenses and privileges necessary to
the conduct of its business, and qualify and remain qualified as a foreign
business entity and authorized to do business in each jurisdiction where the
nature and scope of its activities require it to so qualify under Applicable
Law, except where the
55
failure to maintain such rights, franchises, licenses and privileges as to be so
qualified or authorized could not reasonably be expected to have a Material
Adverse Effect.
SECTION 9.2 Maintenance of Property. In addition to the
requirements of any of the Security Documents, protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names, service marks and trademarks; maintain in good working
order and condition all buildings, equipment and other tangible real and
personal property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 9.3 Insurance. Maintain insurance with financially
sound and reputable insurance companies against such risks and in such amounts
as are customarily maintained by similar businesses and as may be required by
Applicable Law and as are required by any Security Documents, and on the Closing
Date and from time to time thereafter deliver to the Administrative Agent upon
its request a detailed list of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
SECTION 9.4 Accounting Methods and Financial Records.
Maintain a system of accounting, and keep such books, records and accounts
(which shall be true and complete in all material respects) as may be required
or as may be necessary to permit the preparation of financial statements in
accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 9.5 Payment and Performance of Obligations. Pay and
perform all Obligations under this Agreement and the other Loan Documents, and
pay or perform (a) all taxes, assessments and other governmental charges that
may be levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or such Restricted Subsidiary may contest
any item described in clauses (a) or (b) of this Section 9.5 in good faith so
long as adequate reserves are maintained with respect thereto in accordance with
GAAP.
SECTION 9.6 Compliance With Laws and Approvals. Observe and remain
in compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to the
conduct of its business.
SECTION 9.7 Environmental Laws. In addition to and without limiting
the generality of Section 9.6, (a) comply with, and ensure such compliance by
all tenants and subtenants with all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants, if any,
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective
56
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
presence of Hazardous Materials, or the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Borrower or any such Restricted Subsidiary, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing directly result from the gross negligence
or willful misconduct of the party seeking indemnification therefor.
SECTION 9.8 Compliance with ERISA. In addition to and
without limiting the generality of Section 9.6, (a) comply with all applicable
provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans, (b) not take any action or fail to
take action the result of which could be a liability to the PBGC or to a
Multiemployer Plan, (c) not participate in any prohibited transaction that could
result in any civil penalty under ERISA or tax under the Code, (d) operate each
Employee Benefit Plan in such a manner that will not incur any tax liability
under Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code except to the extent such failure to comply
could not reasonably be expected to have a Material Adverse Effect and (e)
furnish to the Administrative Agent upon the Administrative Agent's request such
additional information about any Employee Benefit Plan as may be reasonably
requested by the Administrative Agent.
SECTION 9.9 Compliance With Agreements. Comply in all
respects with each material term, condition and provision of all leases,
agreements and other instruments entered into in the conduct of its business
including, without limitation, any Material Contract; provided, that the
Borrower or any such Restricted Subsidiary may contest any such lease, agreement
or other instrument in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 9.10 Visits and Inspections. Except to the extent
that Borrower is advised by the U.S. Government that the following would result
in a breach of any national security requirements under agreements with the U.S.
Government, at reasonable times and upon reasonable notice (provided that no
such notice shall be required if a Default or Event of Default shall have
occurred and be continuing), permit representatives of the Administrative Agent
or any Lender, from time to time, to visit and inspect its properties; inspect,
audit and make extracts from its books, records and files, including, but not
limited to, management letters prepared by independent accountants; and discuss
with its principal officers, and its independent accountants, its business,
assets, liabilities, financial condition, results of operations and business
prospects.
SECTION 9.11 Additional Subsidiaries. Within thirty (30)
Business Days after any Subsidiary of the Borrower, which is created or acquired
after the Closing Date (or with respect to Inactive Subsidiaries, is in
existence on or after the date which is one hundred-eighty (180) days after the
Closing Date), engages in any business operations, cause to be executed and
delivered to the Administrative Agent (i) duly executed Collateral Agreements
and Guaranty Agreements (or joinders thereto), (ii) such other instruments and
documents and other items of the
57
type required to be delivered pursuant to Section 6.2(c), all in form and
substance reasonably satisfactory to the Administrative Agent, as may be
required by the Administrative Agent to obtain a first priority perfected
security interest in all personal property of such Subsidiary (subject to
Permitted Liens); provided that if such Subsidiary is a Foreign Subsidiary of
the Borrower, (i) such Foreign Subsidiary shall not be required to execute or
join the Guaranty Agreement, or to otherwise guaranty the Obligations hereunder,
and (ii) the Borrower shall pledge to the Administrative Agent no more than
sixty-five percent (65%) (or such greater percentage which would not result in
material adverse tax consequences to the Borrower) of the capital stock or other
equity interests of such Foreign Subsidiary; and (iv) favorable legal opinions
addressed to the Administrative Agent and Lenders in form and substance
reasonably satisfactory thereto with respect to such Collateral Agreements and
Guaranty Agreements (or joinders thereto) and such other documents and closing
certificates as may be requested by the Administrative Agent. The Borrower shall
notify the Administrative Agent, within ten (10) Business Days after the
occurrence thereof, of the acquisition of any property by the Borrower or any
Restricted Subsidiary that is of the same type and character of the Collateral
subject to any Security Document, but that is not subject to the existing
Security Documents (including pursuant to any after-acquired property provisions
thereof), any person's becoming a Subsidiary and any other event or condition
that may require additional action of any nature in order to preserve the
effectiveness and perfected status of the liens and security interests of the
Lenders and the Administrative Agent with respect to such property pursuant to
the Security Documents.
SECTION 9.12 Use of Proceeds. The Borrower shall use the
proceeds of the Advances (a) to finance the acquisition of Capital Assets by the
Borrower and its Restricted Subsidiaries in the ordinary course of business, (b)
to refinance all Debt outstanding under the Existing Credit Agreement and the
Existing Bridge Facility, as contemplated by Section 6.2, (c) for working
capital and general corporate requirements of the Borrower and its Restricted
Subsidiaries, including Permitted Acquisitions, and the payment of certain fees
and expenses incurred in connection with the transactions contemplated by this
Agreement and the other Loan Documents, and (d) to fund an initial investment in
the Unrestricted Subsidiary (the "Initial Commercial Business Investment");
provided, that (i) the aggregate amount of the Initial Commercial Business
Investment shall not exceed $12,000,000 and (ii) such Initial Commercial
Business Investment shall be consummated no later than the first anniversary of
the Closing Date.
SECTION 9.13 Intercompany Loans. In the event that the
Borrower or any of the Restricted Subsidiaries incurs any Indebtedness for
borrowed money to any other Restricted Subsidiary or to the Borrower and such
Indebtedness is evidenced by one or more promissory notes, the Borrower or such
Restricted Subsidiary, as the case may be, shall execute and deliver a
subordination agreement in favor of the Administrative Agent and the Lenders,
subordinating such Indebtedness to the Indebtedness of the Borrower and the
Restricted Subsidiaries to the Administrative Agent and the Lenders under this
Agreement, in substantially the form of Exhibit K, and shall deliver the
originals of such promissory notes to the Administrative Agent as additional
security under the Security Documents.
SECTION 9.14 Assignment of Federal Claims. At the request of
the Administrative Agent or the Required Lenders at any time and from time to
time after the occurrence and during the continuation of a Default or an Event
of Default, the Borrower shall deliver to the
58
Administrative Agent the Assignments of Federal Claims with respect to any
contract with or account receivable payable by the U.S. Government.
SECTION 9.15 Inactive Subsidiaries. No later than one-hundred
eighty (180) days following the Closing Date (a) deliver to the Administrative
Agent evidence, satisfactory thereto, of the dissolution of each Inactive
Subsidiary or (b) cause each Inactive Subsidiary which has not been dissolved to
comply with the provisions of Section 9.11 as if such Inactive Subsidiary had
commenced business operations as of the date that is one-hundred eighty (180)
days after the Closing Date.
SECTION 9.16 Further Assurances. Make, execute and deliver
all such additional and further acts, things, deeds and instruments as the
Administrative Agent or any Lender may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Notes, the Letters of Credit and the other Loan Documents.
ARTICLE X
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the Borrower and its Restricted Subsidiaries on a
Consolidated basis will not:
SECTION 10.1 Senior Leverage Ratio. As of any fiscal quarter
end, permit the ratio (the "Senior Leverage Ratio") of (i) Senior Debt as of
such date to (ii) EBITDA for the four (4) consecutive fiscal quarters ending on
such date be greater than the corresponding ratio set forth below:
Closing Date to December 31, 2000 3.00 to 1.00
January 1, 2001 to June 30, 2001 2.75 to 1.00
July 1, 2001 to December 31, 2001 2.50 to 1.00
January 1, 2002 to June 30, 2002 2.25 to 1.00
July 1, 2002 to June 30, 2003 2.00 to 1.00
Thereafter 1.75 to 1.00
SECTION 10.2 Total Leverage Ratio. As of any fiscal quarter
end during any period set forth below, permit the ratio (the "Total Leverage
Ratio") of (a) the sum of (i) Total Debt as of such date less (ii) an amount,
not to exceed $2,000,000 of cash and Cash Equivalents of the Borrower and its
Restricted Subsidiaries which is available for immediate application to repay
Obligations without any restrictions as of such date to (b) EBITDA for the
period of four (4) consecutive fiscal quarters ending on such date to be greater
than the corresponding ratio set forth below:
Closing Date to December 31, 2000 4.75 to 1.00
January 1, 2001 to June 30, 2001 4.50 to 1.00
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July 1, 2001 to December 31, 2001 4.00 to 1.00
January 1, 2002 to June 30, 2002 3.75 to 1.00
July 1, 2002 to June 30, 2003 3.50 to 1.00
Thereafter 3.25 to 1.00
SECTION 10.3 Interest Coverage Ratio. As of any fiscal
quarter end, permit the ratio of (a) EBITDA for the period of four (4)
consecutive fiscal quarters ending on such date to (b) Interest Expense paid in
cash for the period of four (4) consecutive fiscal quarters ending on such date
to be less than the corresponding ratio set forth below:
Closing Date to December 31, 2000 1.65 to 1.00
January 1, 2001 to December 31, 2001 1.80 to 1.00
January 1, 2002 to December 31, 2002 2.20 to 1.00
Thereafter 2.60 to 1.00
provided that, for the purposes of this Section 10.3 only, for the first three
(3) consecutive fiscal quarters following the Closing Date, Interest Expense
(including Interest Expense used in the calculation of EBITDA) shall be
calculated as follows: (i) for the first fiscal quarter ending after the Closing
Date, Interest Expense shall be calculated by multiplying the actual amount of
Interest Expense for such fiscal quarter by four (4), (ii) for the second fiscal
quarter ending after the Closing Date, Interest Expense shall be calculated by
multiplying the actual amount of Interest Expense for such two (2) fiscal
quarters by two (2) and (iii) for the third fiscal quarter ending after the
Closing Date, Interest Expense shall be calculated by multiplying the actual
amount of Interest Expense for such three (3) fiscal quarters by four-thirds
(4/3).
SECTION 10.4 Capital Expenditures. Permit Capital
Expenditures to exceed during the periods set forth below the corresponding
number set forth below:
Closing Date through
December 31, 2000 $8,000,000
Fiscal Year 2001 $18,000,000
Fiscal Year 2002 $20,000,000
Fiscal Year 2003 $22,000,000
Fiscal Year 2004 $24,000,000
Fiscal Year 2005 $26,000,000
Fiscal Year 2006 $26,000,000
SECTION 10.5 Minimum EBITDA. As of any fiscal quarter end,
permit EBITDA for the four (4) consecutive fiscal quarters ending on such date
to be less than the sum of (a) an amount equal to eighty percent (80%) of the
aggregate amount of all EBITDA Adjustments during the term hereof plus (b) the
corresponding amount set forth below:
Closing Date to June 30, 2001 $53,000,000
July 1, 2001 to December 31, 2001 $55,000,000
January 1, 2002 to December 31, 2002 $60,000,000
Thereafter $65,000,000
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SECTION 10.6 Working Capital Liquidity Ratio. Permit the
ratio as of any date (the "Working Capital Liquidity Ratio") of (a) the net book
value of Accounts Receivable (determined in accordance with GAAP) to (b) Senior
Debt to be less than the corresponding ratio set forth below for such date of
calculation:
Closing Date to September 30, 2000 1.00 to 1.00
October 1, 2000 through December 31, 2001 1.10 to 1.00
January 1, 2002 through December 31, 2002 1.25 to 1.00
January 1, 2003 through December 31, 2003 1.50 to 1.00
Thereafter 1.75 to 1.00
SECTION 10.7 Financial Certificate. No later than September
15, 2005, the Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer, in form and substance satisfactory to the Administrative
Agent, evidencing, to the satisfaction of the Administrative Agent, that the
Borrower and the Restricted Subsidiaries (a) are in pro forma compliance with
the financial covenants set forth in Sections 10.1 through 10.06 calculated as
of the end of the period ended August 31, 2005, and (b) will be in pro forma
compliance with the financial covenants set forth in Sections 10.01 through
10.06 calculated as of September 30, 2005, after giving effect to the redemption
of the PIK Subordinated Notes contemplated by Section 11.10
ARTICLE XI
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the Borrower has not and will not permit any of its
Restricted Subsidiaries to:
SECTION 11.1 Limitations on Debt. Create, incur, assume or
suffer to exist any Debt except:
(a) the Obligations;
(b) the Subordinated Notes and other Subordinated Debt of the
Borrower approved in writing by the Required Lenders prior to issuance thereof;
(c) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent; provided, that any counterparty that
is a Lender or an Affiliate of a Lender shall be deemed satisfactory to the
Administrative Agent.
(d) Debt existing on the Closing Date and not otherwise permitted
under this Section 11.1, as set forth on Schedule 7.1(t) or shown on the
financial statements for the period ended June
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30, 2000 delivered to the Administrative Agent pursuant to Section 7.1(o), and
the renewal and refinancing (but not the increase in the aggregate principal
amount) thereof;
(e) Debt of the Borrower and its Restricted Subsidiaries incurred in
connection with Capitalized Leases in an aggregate amount not to exceed
$2,000,000 at any time;
(f) purchase money Debt of the Borrower and its Restricted
Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time;
(g) Guaranty Obligations in favor of the Administrative Agent for
the benefit of the Administrative Agent and the Lenders;
(h) Guaranty Obligations with respect to Debt permitted pursuant to
subsections (a) through (e) of this Section 11.1; provided, that in no event
shall the Borrower or any of the Restricted Subsidiaries incur, assume or suffer
to exist any Guaranty Obligations with respect to indebtedness obligations of
the Unrestricted Subsidiary; and
(i) Indebtedness of the Borrower or any Restricted Subsidiary of the
Borrower owing to the Borrower or to any Restricted Subsidiary; provided that
both the creditor and the debtor in such transaction have executed a
subordination agreement substantially in the form of Exhibit J hereto;
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Restricted Subsidiary of the Borrower
to make any payment to the Borrower or any of its Subsidiaries (in the form of
dividends, intercompany advances or otherwise) for the purpose of enabling the
Borrower to pay the Obligations.
SECTION 11.2 Limitations on Liens. Create, incur, assume or
suffer to exist, any Lien on or with respect to any of its assets or properties
(including without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) (i) not yet due or (ii) as to which the period of grace (not
to exceed thirty (30) days), if any, related thereto has not expired or (iii)
which are being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP;
(b) Liens (other than any Lien imposed by ERISA or any Environmental
Law) created and maintained in the ordinary course of business which would not
reasonably be expected to have a Material Adverse Effect on the business or
operations of the Borrower and its Restricted Subsidiaries, taken as a whole,
and which constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to which the Borrower or any
of its Restricted Subsidiaries is a party for a purpose other than borrowing
money or obtaining credit, including rent security deposits, (C) liens imposed
by law, such as those of carriers, warehousemen and
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mechanics, if payment of the obligation secured thereby is not yet due, (D)
Liens securing taxes, assessments or other governmental charges or levies not
yet subject to penalties for nonpayment, and (E) pledges or deposits to secure
public or statutory obligations of the Borrower or any of its Restricted
Subsidiaries;
(c) Liens affecting real property which constitute minor survey
exceptions or defects or irregularities in title, minor encumbrances, easements
or reservations of, or rights of others for, rights-of-way, sewers, electric
lines, telephone lines and other similar purposes, or zoning or other
restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operation of the
businesses of the Borrower or any of its Restricted Subsidiaries;
(d) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(e) Liens not otherwise permitted by this Section 11.2 and in
existence on the Closing Date and described on Schedule 11.2; provided that each
Lien described in Section 11.2 hereto may be suffered to exist upon the same
terms as those existing on the date hereof, but no extension or renewal thereof
which would result in a Default or an Event of Default hereunder shall be
permitted; and
(f) Liens not affecting real property securing Debt permitted under
Sections 11.1(e) and (f); provided that (i) such Liens shall be created within
six (6) months of the acquisition or lease of the related asset, (ii) such Liens
do not at any time encumber any property other than the property financed by
such Debt, (iii) the amount of Debt secured thereby is not increased and (iv)
the principal amount of Debt secured by any such Lien shall at no time exceed
one hundred percent (100%) of the original purchase price or lease payment
amount of such property at the time it was acquired.
SECTION 11.3 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including without limitation the creation or capitalization of any Restricted
Subsidiary), evidence of Debt or other obligation or security, substantially all
or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or Advances to, or any
investment in cash or by delivery of property in, any Person except:
(a) investments in Restricted Subsidiaries and the Unrestricted
Subsidiary existing on the Closing Date and the other existing loans, advances
and investments described on Schedule 11.3;
(b) the Initial Commercial Business Investment;
(c) investments in promissory notes from officers or employees of
the Borrower or a Restricted Subsidiary for stock issued to such officers or
employees pursuant to the New Stock Incentive Plan;
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(d) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within one hundred twenty (120) days from the date of acquisition
thereof, (ii) commercial paper maturing no more than one hundred twenty (120)
days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or Xxxxx'x Investors Service, Inc., (iii)
certificates of deposit maturing no more than one hundred twenty (120) days from
the date of creation thereof issued by commercial banks incorporated under the
laws of the United States of America, each having combined capital, surplus and
undivided profits of not less than $500,000,000 and having a rating of "A" or
better by a nationally recognized rating agency; provided, that the aggregate
amount invested in such certificates of deposit shall not at any time exceed
$5,000,000 for any one such certificate of deposit and $10,000,000 for any one
such bank, or (iv) time deposits maturing no more than thirty (30) days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder, all of the foregoing investments, "Cash Equivalents";
(e) loans and advances to officers and employees not otherwise
permitted pursuant to Section 11.3(c) in the ordinary course of business as part
of a compensation package or for business expenses (excluding travel and related
expenses) in an aggregate outstanding amount not to exceed (i) $100,000 per
person or (ii) $1,000,000, at any time; and
(f) investments by the Borrower or any of its Restricted
Subsidiaries in the form of acquisitions of all or substantially all of the
business or a line of business (whether by the acquisition of capital stock,
assets or any combination thereof) of any other Person if the Borrower and its
Restricted Subsidiaries promptly comply with Section 9.11 hereof (each, a
"Permitted Acquisition"); provided that:
(i) the Person to be acquired shall be a going concern,
engaged in a business, or the assets to be acquired shall be used in a
business, similar or complimentary to the line of business of the
Borrower and its Restricted Subsidiaries, and such acquisition shall
have been approved by the board of directors or equivalent governing
body (or the shareholders) of the seller and/or the Person to be
acquired;
(ii) the Borrower or its Restricted Subsidiary, as
applicable, shall be the surviving Person and no Change in Control shall
have been effected thereby;
(iii) the Borrower or its Restricted Subsidiary, as
applicable, is in compliance with the covenants contained in Article X
after giving effect to such acquisition;
(iv) no Default or Event of Default shall have occurred and
be continuing both before and after giving effect to the acquisition;
(v) the Borrower shall demonstrate, to the reasonable
satisfaction of the Administrative Agent (A) pro forma compliance with
the covenants contained in Sections
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10.1, 10.2, 10.3, 10.5 and 10.06 after giving effect to the proposed
acquisition, (B) the sum of (I) Total Leverage Ratio, after giving
effect to the acquisition on a pro forma basis plus (II) an additional
margin ratio of 0.25 to 1.0 does not exceed the maximum Total Leverage
Ratio then permitted pursuant to Section 10.1, and (C) the sum of (I)
Senior Leverage Ratio, after giving effect to the acquisition on a pro
forma basis plus (II) an additional margin ratio of 0.25 to 1.00 does
not exceed the maximum Senior Leverage Ratio then permitted pursuant to
Section 10.2;
(vi) the Borrower shall have delivered written notice of such
proposed acquisition to the Administrative Agent, which notice shall
include the proposed closing date of the acquisition, not less than
thirty (30) calendar days prior to such proposed closing date;
(vii) to the extent requested by the Administrative Agent, the
Borrower shall have delivered to the Administrative Agent copies of (A)
the Permitted Acquisition Documents, which shall be in form and
substance reasonably satisfactory to the Administrative Agent and shall
be delivered to the Administrative Agent promptly upon the finalization
thereof and (B) the Permitted Acquisition Diligence Information, which
shall be in form and substance reasonably satisfactory to the
Administrative Agent, not less than fifteen (15) calendar days prior to
the proposed closing date of such acquisition; and
(viii) the Borrower shall have obtained the prior written
consent of the Required Lenders prior to the consummation of any
acquisition, or series of related acquisitions, if the aggregate
consideration to be paid in connection with such proposed acquisition or
series of related acquisitions (A) would exceed $15,000,000 in the
aggregate, (B) together with all prior Permitted Acquisitions in the
current Fiscal Year would exceed $25,000,000 in the aggregate or (C)
together with all prior Permitted Acquisitions during the term hereof
would exceed $50,000,000 in the aggregate.
SECTION 11.4 Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)
except:
(a) any Restricted Subsidiary of the Borrower may merge into the
Borrower or into any Wholly-Owned Restricted Subsidiary of the Borrower;
(b) any Wholly-Owned Restricted Subsidiary of the Borrower may merge
with or into another Person in connection with an acquisition permitted by
Section 11.3(c), provided that if such Person is the surviving entity of such
merger, such Person shall become a Wholly-Owned Restricted Subsidiary and the
Borrower and such Person comply with Section 9.11; and
(c) any Restricted Subsidiary of the Borrower may wind-up into the
Borrower or any Wholly-Owned Restricted Subsidiary of the Borrower.
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SECTION 11.5 Limitations on Sale of Assets. Convey, sell,
lease, assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the
business of the Borrower or any of its Restricted Subsidiaries;
(c) the transfer of assets to the Borrower or any Restricted
Subsidiary of the Borrower in the ordinary course of business or pursuant to
Section 11.4 (c);
(d) the sale or discount without recourse of Accounts Receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(e) notwithstanding anything to the contrary in the Security
Documents and subject to the requirements of Section 2.6(b), the sale or
disposition for fair market value by the Borrower or any Restricted Subsidiary
of up to 2,500,000 shares of the Unrestricted Subsidiary (as such number may be
adjusted pursuant to stock splits, stock combinations, share exchanges and any
other similar changes affecting the stock); and
(f) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, the sale of other assets in an aggregate
amount not to exceed $2,000,000 in any Fiscal Year;
provided; however, that anything in this Section 11.5 or elsewhere in
this Agreement to the contrary notwithstanding, so long as any Subordinated Note
Agreement Standstill Period shall be in effect and until the expiry thereof, the
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
convey, sell, lease, assign, transfer or otherwise dispose of any of its
property, business or assets, or enter into or be a party to any binding
transaction or agreement relating to the conveyance, sale, lease, assignment,
transfer or other disposition of any of its property, business or assets, other
than the sale of assets in the ordinary course of business for fair value.
SECTION 11.6 Limitations on Dividends and Distributions.
Declare or pay any dividends upon any of its capital stock; purchase, redeem,
retire or otherwise acquire, directly or indirectly, any shares of its capital
stock, or make any distribution of cash, property or assets among the holders of
shares of its capital stock, or make any change in its capital structure;
provided that:
(a) the Borrower or any Restricted Subsidiary may pay dividends in
shares of its own capital stock;
(b) any Restricted Subsidiary may pay cash dividends to the
Borrower;
(c) the Borrower may repurchase or redeem any shares of its capital
stock (i) issued pursuant to the New Stock Incentive Plan in accordance with the
terms thereof as in effect on the
66
date hereof and (ii) as otherwise may be permitted pursuant to a share
repurchase plan duly adopted by the Borrower's board of directors; provided that
the aggregate amount of all shares repurchased pursuant to this clause (ii)
shall not exceed $500,000 during the term hereof; and
(d) so long as no default or Event of Default has occurred and is
continuing, or would result therefrom, on and after October 15, 2004, the
Borrower may make dividend payments to the holders of its Preferred Stock, to
the extent required pursuant to paragraph (c) of the Preferred Stock Certificate
of Designation.
SECTION 11.7 Limitations on Exchange and Issuance of Capital
Stock. (a) Issue, sell or otherwise dispose of any Class A shares, Class B
shares, preferred shares or any other class or series of capital stock (other
than dividends paid to holders of the Preferred Stock in kind pursuant to the
Preferred Stock Certificate of Designations) that, by its terms or by the terms
of any security into which it is convertible or exchangeable, is, or upon the
happening of an event or passage of time would be, (i) convertible or
exchangeable into Debt or (ii) required to be redeemed or repurchased, including
at the option of the holder, in whole or in part, or has, or upon the happening
of an event or passage of time would have, a redemption or similar payment due,
or (b) convert any of the shares of Preferred Stock into Exchange Debentures.
SECTION 11.8 Transactions with Affiliates. Directly or
indirectly (a) make any loan or advance to, or purchase or assume any note or
other obligation to or from, any of its officers, directors, shareholders or
other Affiliates, or to or from any member of the immediate family of any of its
officers, directors, shareholders or other Affiliates, or subcontract any
operations to any of its Affiliates or (b) enter into, or be a party to, any
other transaction not described in clause (a) above with any of its Affiliates,
except (i) pursuant to the New Stock Incentive Plan, (ii) loans and advances
permitted under Section 11.3(e), (iii) so long as no Default or Event of Default
shall have occurred and be continuing, payment of a management, consulting or
other similar fee to any Affiliates of the Borrower in an amount not to exceed
$500,000 in any Fiscal Year, and (iv) pursuant to the reasonable requirements of
its business and upon fair and reasonable terms that are fully disclosed to the
Required Lenders prior to the consummation thereof and are no less favorable to
it than it would obtain in a comparable arm's length transaction with a Person
not its Affiliate.
SECTION 11.9 Certain Accounting Changes; Organizational
Documents. (a) Change its Fiscal Year end, or make any change in its accounting
treatment and reporting practices except as required or permitted by GAAP or (b)
amend, modify or change its articles of incorporation (or corporate charter or
other similar organizational documents, including, without limitation, the
Preferred Stock Certificate of Designation) or amend, modify or change its
bylaws (or other similar documents), in each case, in any manner adverse in any
respect to the rights or interests of the Lenders.
SECTION 11.10 Amendments; Payments and Prepayments of
Subordinated Debt. Amend or modify (or permit the modification or amendment of)
any of the terms or provisions of Sections 6, 5.13, 5.14 (or any successors
thereto) of the Subordinated Note Agreement, Section 14 (or any successor
thereto) of any of the Subordinated Guaranties or any of the corresponding
defined terms used in such Sections, or otherwise amend or modify (or permit the
amendment or modification of) any of the other terms or provisions of the
Subordinated Note Documents or any
67
other documents or agreements evidencing any other Subordinated Debt in any
manner which would result in any such terms or provisions being more restrictive
to the Borrower or any Restricted Subsidiary, as determined by the
Administrative Agent in its reasonable judgement, or cancel or forgive, make any
required or voluntary or optional payment or prepayment on, or redeem or acquire
for value (including without limitation by way of depositing with any trustee
with respect thereto money or securities before due for the purpose of paying
when due) any Subordinated Debt; provided that the Borrower make required
scheduled interest payments on the Subordinated Notes so long as, at the time of
such payment, such payment is permitted by any subordination provisions
applicable to the Subordinated Notes; provided, further, that on or after
September 30, 2005, the Borrower may repay up to an aggregate of $10,300,000 in
principal amount of PIK Subordinated Notes so long as (a) at the time of such
repayment, such payment is permitted by any subordination provisions applicable
to the PIK Subordinated Notes, and (b) no Default or Event of Default shall have
occurred and be continuing, or would result from such repayment.
SECTION 11.11 Restrictive Agreements.
(a) Enter into any Debt which (i) contains any negative pledge on
assets, (ii) contains any covenants more restrictive than the provisions of
Articles IX, X and XI hereof, or (iii) restricts, limits or otherwise encumbers
its ability to incur Liens on or with respect to any of its assets or properties
other than, (x) in each case, in respect of the assets or properties securing
such Debt, and (y) with respect to clauses (i) and (iii) only, the Subordinated
Notes.
(b) Enter into or permit to exist any agreement which impairs or
limits the ability of any Restricted Subsidiary of the Borrower to pay dividends
to the Borrower.
SECTION 11.12 Nature of Business. Alter in any material
respect the character or conduct of the business conducted by the Borrower and
its Restricted Subsidiaries, taken as a whole, as of the Closing Date.
SECTION 11.13 Impairment of Security Interests. Take or omit
to take any action, which might or would have the result of materially impairing
the security interests in favor of the Administrative Agent with respect to the
Collateral or grant to any Person (other than the Administrative Agent for the
benefit of itself and the Lenders pursuant to the Security Documents) any
interest whatsoever in the Collateral, except for Liens permitted under Section
11.2 and asset sales permitted under Section 11.5.
SECTION 11.14 Unrestricted Subsidiary. Designate the
Unrestricted Subsidiary as a "Restricted Subsidiary" under the Subordinated Note
Agreement without the consent of the Required Lenders.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be
68
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation and such default shall continue for a period of three (3)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed
to be made by the Borrower or any of its Restricted Subsidiaries under this
Agreement, any other Loan Document or any amendment hereto or thereto, shall at
any time prove to have been incorrect or misleading in any material respect when
made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower or any
Restricted Subsidiary shall default in the performance or observance of (i) any
covenant or agreement contained in Section 8.5(e)(i) or Articles X or XI of this
Agreement or (ii) any covenant or agreement contained in Sections 8.1 or 8.2 of
this Agreement and, in the case of this clause (ii) only, such default shall
continue for a period of fifteen (15) days.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any Restricted Subsidiary thereof shall default in the performance
or observance of any term, covenant, condition or agreement contained in this
Agreement (other than those specifically provided for otherwise in this Section
12.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after the earlier to occur of (i) the date on which a
Responsible Officer of the Borrower first obtains knowledge of such default or
(ii) the date on which written notice thereof has been given to the Borrower by
the Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be due by the
Borrower under any Hedging Agreement and such amount is not paid within ten (10)
Business Days of the due date thereof.
(g) Debt Cross-Default. The Borrower or any of its Restricted
Subsidiaries shall (i) default in the payment of any Debt (other than the Notes
or any Reimbursement Obligation) the aggregate outstanding amount of which Debt
is in excess of $1,000,000 beyond the period of grace, if any, provided in the
instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $1,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
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(h) Intentionally Omitted.
(i) Change in Control. (i) Any Person or group of persons (within
the meaning of Section 13(d) of the Exchange Act) other than Monitor Clipper
Equity Partners, L.P., Monitor Clipper Equity Partners (foreign), L.P., or any
Affiliate of any of the foregoing (the "Permitted Holders"), shall become the
beneficial owner (as defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time) of more than 35% of the total voting power of the
Borrower's capital stock, or the Permitted Holders beneficially own, in the
aggregate, less than 25% of the total voting power of the capital stock of the
Borrower and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of the Borrower, (ii) there shall be consummated any consolidation or
merger of the Borrower in which the Borrower is not the continuing or surviving
Person or pursuant to which the common stock of the Borrower would be converted
into cash, securities or other property, other than a merger of consolidation of
the Borrower with or into a Permitted Holder or in which the holders of the
capital stock of the Borrower outstanding immediately prior to the consolidation
or merger hold, directly or indirectly, at least a majority of the voting power
of the capital stock of the surviving corporation immediately after such
consolidation or merger, (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
the Borrower has been approved by a majority of the directors then still in
office who either were directors at the beginning of such period or whose
election or recommendation for election was previously so approved) cease to
constitute a majority of the Board of Directors of the Borrower, (iv) the
approval of the holders of capital stock of the Borrower of any plan or proposal
for the liquidation or dissolution of the Borrower, (v) there shall have
occurred under any indenture or other instrument evidencing any Debt in excess
of $1,000,000 any "change in control" (as defined in such indenture or other
evidence of Debt) obligating the Borrower, or permitting the holders thereof to
require the Borrower, to repurchase, redeem or repay all or any part of the Debt
or capital stock provided for therein or (vi) a "change in control" shall have
occurred under the Preferred Stock Certificate of Designation (any such event
described in clause (i), through (vi) above, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Restricted
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing any
of the foregoing.
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(k) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against the Borrower or any Restricted Subsidiary thereof in
any court of competent jurisdiction seeking (i) relief under the federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or adjustment of debts, or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for the Borrower or any Restricted Subsidiary
thereof or for all or any substantial part of their respective assets, domestic
or foreign, and such case or proceeding shall continue without dismissal or stay
for a period of sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order
for relief under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on the Borrower or Restricted Subsidiary party thereto or any such
Person shall so state in writing, or any Loan Document shall for any reason
cease to create a valid and perfected first priority Lien on, or security
interest in, any of the collateral purported to be covered thereby, in each case
other than in accordance with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following
events: (i) the Borrower or any ERISA Affiliate fails to make full payment when
due of all amounts which, under the provisions of any Pension Plan or Section
412 of the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess of
$100,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plans makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$500,000.
(n) Judgment. A judgment or order for the payment of money in an
amount of $500,000 for a single occurrence, or $1,000,000 in the aggregate in
any Fiscal Year shall be entered against the Borrower or any of its Restricted
Subsidiaries by any court and such judgment or order shall continue without
discharge or stay for a period of thirty (30) days.
(o) Environmental. Any one or more Environmental Claims shall have
been asserted against the Borrower or any of its Restricted Subsidiaries; the
Borrower and its Restricted Subsidiaries would be reasonable likely to incur
liability as a result thereof; and such liability would be reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect.
(p) Government Contracts. (i) A notice of debarment, notice of
suspension or notice of termination for default shall have been issued under any
contract with the U.S. Government which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect; (ii) the Borrower or
any Restricted Subsidiary is barred or suspended from contracting with any part
of the U.S. Government; (iii) a U.S. Government investigation shall have been
commenced in connection with any contract of the Borrower or of any Restricted
Subsidiary with the U.S. Government which could reasonably result in criminal or
civil liability, suspension, debarment or
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any other adverse administrative action arising by reason of alleged fraud,
willful misconduct, neglect, default or other wrongdoing which individually or
in the aggregate could reasonably be expected to have a Material Adverse Effect;
(iv) the actual termination of any contract with the U.S. Government due to
alleged fraud, willful misconduct, neglect, default or any other wrongdoing
which individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or (v) a cure notice issued under any contract with the
U.S. Government shall remain uncured beyond (A) the expiration of the time
period available to the Borrower or any Restricted Subsidiary pursuant to such
contract with the U.S. Government and/or such cure notice, to cure the noticed
default, or (B) the date on which the other contracting party is entitled to
exercise its rights and remedies under the contract with the U.S. Government as
a consequence of such default which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
SECTION 12.2 Remedies. Upon the occurrence of an Event of
Default, with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal
of and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(other than any Hedging Agreement) (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented or shall be entitled to present the documents
required thereunder) and all other Obligations (other than obligations owing
under any Hedging Agreement), to be forthwith due and payable, whereupon the
same shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived, anything
in this Agreement or the other Loan Documents to the contrary notwithstanding,
and terminate the Credit Facility and any right of the Borrower to request
borrowings or Letters of Credit thereunder; provided, that upon the occurrence
of an Event of Default specified in Section 12.1(j) or (k), the Credit Facility
shall be automatically terminated and all Obligations (other than obligations
owing under any Hedging Agreement) shall automatically become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or in any other Loan Document
to the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have expired or been
fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower.
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(c) Rights of Collection. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc.
The enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1 Appointment. Each of the Lenders hereby
irrevocably designates and appoints First Union as Administrative Agent of such
Lender under this Agreement and the other Loan Documents for the term hereof and
each such Lender irrevocably authorizes First Union, as Administrative Agent for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and such other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement or such other Loan Documents, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or the other Loan
Documents or otherwise exist against the Administrative Agent. Any reference to
the Administrative Agent in this Article XIII shall be deemed to refer to the
Administrative Agent solely in its capacity as Administrative Agent and not in
its capacity as a Lender.
SECTION 13.2 Delegation of Duties. The Administrative Agent
may execute any of its respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by the Administrative Agent with
reasonable care.
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SECTION 13.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or the other Loan Documents (except for actions
occasioned solely by its or such Person's own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
of its Restricted Subsidiaries or any officer thereof contained in this
Agreement or the other Loan Documents or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or the other
Loan Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents or
for any failure of the Borrower or any of its Restricted Subsidiaries to perform
its obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Borrower or any of its Restricted Subsidiaries.
SECTION 13.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 14.10. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
and the other Loan Documents unless it shall first receive such advice or
concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Documents, all the Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 13.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless it has received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, it shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
when expressly required hereby, all the Lenders); 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
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from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders, except to the extent
that other provisions of this Agreement expressly require that any such action
be taken or not be taken only with the consent and authorization or the request
of the Lenders or Required Lenders, as applicable.
SECTION 13.6 Non-Reliance on the Administrative Agent and
Other Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact, Subsidiaries or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Borrower or any of
its Subsidiaries, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and made its
own decision to make its Loans and issue or participate in Letters of Credit
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower or
any of its Subsidiaries which may come into the possession of the Administrative
Agent or any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 13.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such and (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to the respective amounts of their Aggregate
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes or any Reimbursement
Obligation) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement or the other Loan
Documents, or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's bad faith, gross negligence or willful misconduct. The agreements in
this Section 13.7 shall survive the payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder and the termination of this
Agreement.
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SECTION 13.8 The Administrative Agent in Its Individual
Capacity. The Administrative Agent and its respective Subsidiaries and
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower as though the Administrative Agent were not
the Administrative Agent hereunder. With respect to any Loans made or renewed by
it and any Note issued to it and with respect to any Letter of Credit issued by
it or participated in by it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
SECTION 13.9 Resignation of the Administrative Agent;
Successor Administrative Agent. Subject to the appointment and acceptance of a
successor as provided below, the Administrative Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Administrative Agent with the consent of the Borrower if such successor is not a
Lender hereunder (provided that such consent shall not be unreasonably withheld
and provided, further, that no such consent shall be required if a Default or
Event of Default shall have occurred and be continuing), which successor shall
have minimum capital and surplus of at least $500,000,000. 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
Administrative Agent's giving of notice of resignation, then the Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which successor shall have minimum capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, 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 13.9 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 13.10 Syndication Agent and Documentation Agent. The
Syndication Agent, in its capacity as a syndication agent, and the Documentation
Agent, in its capacity as documentation agent, shall have no duties or
responsibilities under this Agreement or any other Loan Document.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be
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presumed to be received by a party hereto (i) on the date of delivery if
delivered by hand or sent by telecopy, (ii) on the next Business Day if sent by
recognized overnight courier service and (iii) on the third Business Day
following the date sent by certified mail, return receipt requested. A
telephonic notice to the Administrative Agent as understood by the
Administrative Agent will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party shall be sent to it
at the following addresses, or any other address as to which all the other
parties are notified in writing.
If to the Borrower: Veridian Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to First Union as First Union National Bank
Administrative Agent: Charlotte Plaza, CP-23
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 14.2 Expenses; Indemnity. The Borrower will (a) pay
all out-of-pocket expenses of the Administrative Agent in connection with (i)
the preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including, without
limitation, all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent and
(ii) the preparation, execution and delivery of any waiver, amendment or consent
by the Administrative Agent or the Lenders relating to this Agreement or any
other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all reasonable
out-of-pocket expenses of the Administrative Agent and each Lender actually
incurred in connection with the administration and enforcement of any rights and
remedies of the Administrative Agent and Lenders under the Credit Facility,
including consulting with appraisers, accountants, engineers, attorneys and
other Persons concerning the nature, scope or value of any right or remedy of
the Administrative Agent or any Lender hereunder or under any other Loan
Document or any factual matters in connection therewith, which expenses shall
include without limitation the reasonable fees and disbursements of such
Persons, and (c) defend, indemnify and
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hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any losses, penalties, fines, liabilities, settlements,
damages, costs and expenses, suffered by any such Person in connection with any
claim, investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the Agreement, any
other Loan Document or the Loans, including without limitation reasonable
attorney's and consultant's fees, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
SECTION 14.3 Set-off. In addition to any rights now or
hereafter granted under Applicable Law and not by way of limitation of any such
rights, upon and after the occurrence of any Event of Default and during the
continuance thereof, the Lenders and any assignee or participant of a Lender in
accordance with Section 14.10 are hereby authorized by the Borrower at any time
or from time to time, without notice to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, time or demand, including, but
not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
the Lenders, or any such assignee or participant to or for the credit or the
account of the Borrower against and on account of the Obligations irrespective
of whether or not (a) the Lenders shall have made any demand under this
Agreement or any of the other Loan Documents or (b) the Administrative Agent
shall have declared any or all of the Obligations to be due and payable as
permitted by Section 12.2 and although such Obligations shall be contingent or
unmatured. Notwithstanding the preceding sentence, each Lender agrees to notify
the Borrower and the Administrative Agent after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
SECTION 14.4 Governing Law. This Agreement, the Notes and the
other Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, construed and enforced in accordance with the laws of the State of
North Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 14.5 Consent to Jurisdiction. The Borrower hereby
irrevocably consents to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, in any action, claim or
other proceeding arising out of any dispute in connection with this Agreement,
the Notes and the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Borrower
hereby irrevocably consents to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative Agent
or any Lender in connection with this Agreement, the Notes or the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations, on behalf of itself or its property, in the
manner specified in Section 14.1. Nothing in this Section 14.5 shall affect the
right of the Administrative Agent or any Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against the
Borrower or its properties in the courts of any other jurisdictions.
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SECTION 14.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made
before or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement or any
other Loan Document ("Disputes"), between or among parties hereto and to the
other Loan Documents shall be resolved by binding arbitration as provided
herein. Institution of a judicial proceeding by a party does not waive the right
of that party to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as class actions, claims
arising from Loan Documents executed in the future, disputes as to whether a
matter is subject to arbitration, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. All
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of limitations shall apply to any Dispute. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding anything foregoing to
the contrary, any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within one
hundred twenty (120) days after such demand. These time limitations may not be
extended unless a party hereto shows cause for extension and then such extension
shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement that is a
Loan Document.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE
BORROWER HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY
ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in the
Loan Documents or under Applicable Law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
79
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
SECTION 14.7 Reversal of Payments. To the extent the Borrower
makes a payment or payments to the Administrative Agent for the ratable benefit
of the Lenders or the Administrative Agent receives any payment or proceeds of
the collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 14.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on
behalf of itself and its Restrictive Subsidiaries) hereby agree that no such
Person shall have a remedy of punitive or exemplary damages against any other
party to a Loan Document and each such Person hereby waives any right or claim
to punitive or exemplary damages that they may now have or may arise in the
future in connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 14.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Restricted Subsidiary thereof to determine compliance with any
covenant contained herein, shall, except as otherwise expressly contemplated
hereby or unless there is an express written direction by the Administrative
Agent to the contrary agreed to by the Borrower, be performed in accordance with
GAAP as in effect on the Closing Date. In the event that changes in GAAP shall
be mandated or permitted by the Financial Accounting Standards Board, or any
similar accounting body of comparable standing, or shall be recommended by the
Borrower's certified public accountants, to the extent that such changes would
modify such accounting terms or the interpretation or computation thereof, such
changes shall be followed in defining such accounting terms only from and after
the date the Borrower and the Required Lenders shall have amended this Agreement
to the extent necessary to reflect any such changes in the financial covenants
and other terms and conditions of this Agreement.
80
SECTION 14.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that the Borrower shall not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Borrower (so long as no Default or Event of Default has occurred and is
continuing) and the consent of the Administrative Agent, which consents shall
not be unreasonably withheld, assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, all or a portion of the
Advances at the time owing to it and the Notes held by it); provided that the
consent of the Borrower and the Administrative Agent shall not be required for
any assignments by a Lender to an Affiliate of such Lender, and provided,
further, that:
(i) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Lender's rights and obligations
under this Agreement;
(ii) if less than all of the assigning Lender's
Revolving Credit Commitment or Term Loan Commitment, as applicable, is to be
assigned, the Commitment so assigned shall not be less than $1,000,000;
(iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit G
attached hereto (an "Assignment and Acceptance"), together with any Note or
Notes subject to such assignment;
(iv) such assignment shall not, without the consent
of the Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the Notes
under the blue sky laws of any state; and
(v) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,000 upon the execution by such
Lender of the Assignment and Acceptance; provided that no such fee shall be
payable upon any assignment by a Lender to an Affiliate or Approved Fund
thereof; and provided further that, in the case of contemporaneous assignments
by a Lender to more than one fund managed by the same investment advisor (which
funds are not then Lenders hereunder), only a single $3,000 such fee shall be
payable for all such contemporaneous assignments.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
81
(c) Rights and Duties Upon Assignment. By executing and delivering
an Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Advances with
respect to each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, 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
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and
the Borrower; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee in
amounts equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes delivered to the assigning Lender. Each surrendered Note
or Notes shall be canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Advances and the Notes held by it); provided that:
(i) each such participation shall be in an amount
not less than $1,000,000;
82
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Revolving Credit Commitment and/or Term Loan
Commitment, as applicable) shall remain unchanged;
(iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes
held by it for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant
the right to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate on any
Loan or Reimbursement Obligation, extend the term or increase the amount of the
Commitment, reduce the amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal of any Loan or, except as
expressly contemplated hereby or thereby, release substantially all of the
Collateral; and
(vii) any such disposition shall not, without the
consent of the Borrower, require the Borrower to file a registration statement
with the Securities and Exchange Commission to apply to qualify the Loans or the
Notes under the blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrower obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that nothing herein shall prevent any Lender or the
Administrative Agent from disclosing such information (i) to any other Lender,
or any officer, director, employee, agent, or advisor of any Lender, (ii) to any
other Person if reasonably incidental to the administration of the Loans
provided herein such as an attorney or accountant for a Lender or the
Administrative Agent, provided such Person agrees to maintain the
confidentiality of such information and uses same only in connection with the
administration or enforcement of the Loan Documents, (iii) as required by any
law, rule, or regulation, (iv) upon the order of any court or administrative
agency (provided that notice of such disclosure is promptly given to the
Borrower), (v) upon the request or demand of any regulatory agency or authority,
(vi) that is or becomes available to the public or that is or becomes available
to any Lender or the Administrative Agent other than as a result of a disclosure
by any Lender or the Administrative Agent prohibited by this Agreement, (vii) in
connection with any litigation to which such Lender or the Administrative Agent
or any of its affiliates may be a party (provided that notice of such disclosure
is promptly given to the Borrower), (viii) to the extent necessary in connection
with the exercise of any remedy under this
83
Agreement or any other Loan Document, (ix) 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 agrees to be bound by the confidentiality
undertaking in this Agreement) or (x) 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 the ratings issued with respect to such Lender. Any Lender
may, in connection with any assignment, proposed assignment, participation or
proposed participation pursuant to this Section 14.10, disclose to the assignee,
participant, proposed assignee or proposed participant, any information relating
to the Borrower furnished to such Lender by or on behalf of the Borrower;
provided, that prior to any such disclosure, each such assignee, proposed
assignee, participant or proposed participant shall agree with the Borrower or
such Lender to preserve the confidentiality of any confidential information
relating to the Borrower received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit
any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank
in accordance with Applicable Law, or (ii) in the case of a Lender which is an
Approved Fund, pledging or assigning all or any portion of its rights under this
Agreement to the trustee for holders of obligations owed, or securities issued,
by such Approved Fund as security for such obligations or securities, provided
that any foreclosure or other exercise of remedies by such trustee shall be
subject to the provisions of this Section regarding assignments in all respects
(provided that no such pledge or assignment shall release such Approved Fund
from its obligations hereunder).
SECTION 14.11 Amendments, Waivers and Consents. Except as set
forth below or as specifically provided in any Loan Document, any term,
covenant, agreement or condition of this Agreement or any of the other Loan
Documents (other than any Hedging Agreement, the terms and conditions of which
may be amended, modified or waived by the parties thereto) may be amended or
waived by the Lenders, and any consent given by the Lenders, if, but only if,
such amendment, waiver or consent is in writing signed by the Required Lenders
(or by the Administrative Agent with the consent of the Required Lenders) and
delivered to the Administrative Agent and, in the case of an amendment, signed
by the Borrower; provided, that no amendment, waiver or consent shall (a)
increase the Revolving Credit Commitment or Term Loan Commitment of any Lender,
(b) reduce the rate of interest or fees payable on any Loan or Reimbursement
Obligation, (c) reduce or forgive the principal amount of any Loan or
Reimbursement Obligation, (d) extend the originally scheduled time or times of
payment of the principal of any Loan or Reimbursement Obligation or the time or
times of payment of interest on any Loan or Reimbursement Obligation or any fee
or commission with respect thereto, (e) permit any subordination of the
principal or interest on any Loan or Reimbursement Obligation, (f) release the
Borrower from the Obligations hereunder, (g) permit any assignment (other than
as specifically permitted or contemplated in this Agreement) of any of the
Borrower's rights and obligations hereunder, (h) release any material portion of
the Collateral or release any Security Document (other than asset sales
permitted pursuant to Section 11.5 and as otherwise specifically permitted or
contemplated in this Agreement or the applicable Security Document), (i) amend
the provisions of this Section 14.11 or the definition of Required Lenders, or
(j) alter the manner in which payments or prepayments of principal, interest or
other amounts hereunder shall be applied as between the Lenders or the types of
Loans, in each case, without the prior written consent of each Lender, or (k)
extend the time of the obligation of the
84
Lenders holding Revolving Credit Commitments to make or issue or participate in
Letters of Credit, in any case, without the written consent of each Lender
holding Revolving Credit Loans or a Revolving Credit Commitment. Notwithstanding
anything herein to the contrary but subject nevertheless to the proviso set
forth above in this Section 14.11, no Lender that is in default of any of its
obligations, covenants or agreements under this Agreement shall be entitled to
vote any undrawn portion of its Commitments (whether to consent or to withhold
its consent) with respect to any amendment, modification, termination or waiver
of any provision of this Agreement or any departure therefrom or any direction
from the Lenders to the Administrative Agent, and, for purposes of determining
the Required Lenders at any time when any Lender is in default under this
Agreement, the undrawn portion of the Commitments of such defaulting Lender
shall be disregarded.
In addition, no amendment, waiver or consent to the provisions of (a) Article
XIII shall be made without the written consent of the Administrative Agent and
(b) Article III without the written consent of the Issuing Lender.
SECTION 14.12 Performance of Duties. The Borrower's
obligations under this Agreement and each of the other Loan Documents shall be
performed by the Borrower at its sole cost and expense.
SECTION 14.13 All Powers Coupled with Interest. All powers of
attorney and other authorizations granted to the Lenders, the Administrative
Agent and any Persons designated by the Administrative Agent or any Lender
pursuant to any provisions of this Agreement or any of the other Loan Documents
shall be deemed coupled with an interest and shall be irrevocable so long as any
of the Obligations remain unpaid or unsatisfied or the Credit Facility has not
been terminated.
SECTION 14.14 Survival of Indemnities. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative Agent
and the Lenders are entitled under the provisions of this Article XIV and any
other provision of this Agreement and the other Loan Documents shall continue in
full force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 14.15 Titles and Captions. Titles and captions of
Articles, Sections and subsections in, and the table of contents of, this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement.
SECTION 14.16 Severability of Provisions. Any provision of
this Agreement or any other Loan Document which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 14.17 Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
85
SECTION 14.18 Term of Agreement. This Agreement shall remain
in effect from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied in
full. The Administrative Agent is hereby permitted to release all Liens on the
Collateral in favor of the Administrative Agent, for the ratable benefit of
itself and the Lenders, upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder and the termination of the Lender's Commitments. No termination of
this Agreement shall affect the rights and obligations of the parties hereto
arising prior to such termination or in respect of any provision of this
Agreement which survives such termination.
SECTION 14.19 Inconsistencies with Other Documents;
Independent Effect of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided, that any provision of the Security Documents (but not any
Application) which imposes additional burdens on the Borrower or its Restricted
Subsidiaries or further restricts the rights of the Borrower or its Restricted
Subsidiaries or gives the Administrative Agent or Lenders additional rights
shall not be deemed to be in conflict or inconsistent with this Agreement and
shall be given full force and effect.
(b) The Borrower expressly acknowledges and agrees that each
covenant contained in Articles IX, X, or XI hereof shall be given independent
effect. Accordingly, the Borrower shall not engage in any transaction or other
act otherwise permitted under any covenant contained in Articles IX, X, or XI
if, before or after giving effect to such transaction or act, the Borrower shall
or would be in breach of any other covenant contained in Articles IX, X, or XI.
[Signature pages to follow]
86
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
[CORPORATE SEAL] VERIDIAN CORPORATION, as Borrower
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: SVP
-----------------------------
[Signature Pages Continue]
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: Managing Director
-----------------------------
[Signature Pages Continue]
BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Senior Vice President
-----------------------------
[Signature Pages Continue]
IBM CREDIT CORPORATION, as Lender
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Manager, Commercial & Specialty
--------------------------------
Financing Sales
--------------------------------
[Signature Pages Continue]
SIEMENS FINANCIAL SERVICES, INC., as Lender
By: /s/ XXXXX XXXXXX
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President - Credit
[Signature Pages Continue]
CHEVY CHASE BANK, as Lender
By: /s/ XXXX X. XXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------
Title: Vice President
-------------------------------
[Signature Pages Continue]
XXXXXX FINANCIAL, INC., as Lender
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: EVP
---------------------------------
[Signature Pages Continue]
FRANKLIN FLOATING RATE TRUST, as Lender
By: /s/ XXXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxxx Xxxxxx
----------------------------------
Title: Vice President
----------------------------------
FRANKLIN FLOATING RATE MASTER SERIES, as Lender
By: /s/ XXXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxxx Xxxxxx
----------------------------------
Title: Vice President
----------------------------------
SRF 2000 LLC, as Lender
By: /s/ XXX X. XXXXXX
-----------------------------------------
Name: Xxx X. Xxxxxx
-------------------------------
Title: Asst. Vice President
-------------------------------
[Signature Pages Continue]
SRF TRADING, INC., as Lender
By: /s/ XXX X. XXXXXX
------------------------------------------
Name: Xxx X. Xxxxxx
--------------------------------
Title: Asst. Vice President
--------------------------------
[Signature Pages Continue]
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE ADVANTAGE
FUND, as Lender
By Xxxxx Xxx & Farnham Incorporated, as Advisor
By: /s/ XXXXX X. GOOD
-----------------------------------------------------
Name: Xxxxx X. Good
-------------------------------------------
Title: Sr. Vice President & Portfolio Manager
-------------------------------------------
[Signature Pages Continue]
XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY,
as Lender
By: /s/ XXXXX X. GOOD
-------------------------------------------------
Name: Xxxxx X. Good
---------------------------------------
Title: Senior Vice President
---------------------------------------
Xxxxx Xxx & Farnham Incorporated,
---------------------------------------
as Advisor to the Xxxxx Xxx Floating
---------------------------------------
Rate Limited Liability Company
---------------------------------------
[Signature Pages Continue]
KZH ING-1 LLC, as Lender
By: /s/ XXXXX XXXX
-----------------------------------------------
Name: Xxxxx Xxxx
-------------------------------------
Title: Authorized Agent
-------------------------------------
[Signature Pages Continue]
KZH ING-2 LLC, as Lender
By: /s/ XXXXX XXXX
----------------------------------------------
Name: Xxxxx Xxxx
------------------------------------
Title: Authorized Agent
------------------------------------
[Signature Pages Continue]
KZH ING-3 LLC, as Lender
By: /s/ XXXXX XXXX
---------------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: Authorized Agent
-----------------------------------
[Signature Pages Continue]
KZH SHOSHONE LLC, as Lender
By: /s/ XXXXX XXXX
----------------------------------------------
Name: Xxxxx Xxxx
------------------------------------
Title: Authorized Agent
------------------------------------
[Signature Pages Continue]
XXXXXXXXXXX SENIOR FLOATING RATE FUND, as Lender
By: /s/ XXXXX XXXXXX
----------------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of September 14, 2000,
by and among
VERIDIAN CORPORATION,
as Borrower,
the Lenders referred to herein,
XXXXXX FINANCIAL, INC.,
as Documentation Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
and
BANC OF AMERICA SECURITIES LLC
and
FIRST UNION SECURITIES, INC.,
as Joint Book Runners
================================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.....................................................................................................1
-----------
SECTION 1.1 Definitions................................................................................................1
-----------
SECTION 1.2 General...................................................................................................18
-------
SECTION 1.3 Other Definitions and Provisions..........................................................................18
--------------------------------
ARTICLE II REVOLVING CREDIT FACILITY.....................................................................................18
-------------------------
SECTION 2.1 Revolving Credit Loans....................................................................................18
----------------------
SECTION 2.2 Swingline Loans...........................................................................................19
---------------
SECTION 2.3 Procedure for Advances of Revolving Credit and Swingline Loans............................................20
--------------------------------------------------------------
SECTION 2.4 Repayment of Loans........................................................................................21
------------------
SECTION 2.5 Notes.....................................................................................................22
-----
SECTION 2.6 Permanent Reduction of the Revolving Credit Commitment....................................................22
------------------------------------------------------
SECTION 2.7 Termination of Revolving Credit Facility..................................................................23
----------------------------------------
ARTICLE III LETTER OF CREDIT FACILITY....................................................................................23
-------------------------
SECTION 3.1 L/C Commitment............................................................................................23
--------------
SECTION 3.2 Procedure for Issuance of Letters of Credit...............................................................23
-------------------------------------------
SECTION 3.3 Commissions and Other Charges.............................................................................24
-----------------------------
SECTION 3.4 L/C Participations........................................................................................24
------------------
SECTION 3.5 Reimbursement Obligation of the Borrower..................................................................25
----------------------------------------
SECTION 3.6 Obligations Absolute......................................................................................26
--------------------
SECTION 3.7 Effect of Application.....................................................................................26
---------------------
ARTICLE IV TERM LOAN FACILITY............................................................................................26
------------------
SECTION 4.1 Term Loan.................................................................................................26
---------
SECTION 4.2 Procedure for Advance of Term Loan........................................................................26
----------------------------------
SECTION 4.3 Repayment of Term Loan....................................................................................27
----------------------
SECTION 4.4 Prepayments of Term Loan..................................................................................28
------------------------
SECTION 4.5 Term Notes................................................................................................29
----------
ARTICLE V GENERAL LOAN PROVISIONS.........................................................................................29
-----------------------
SECTION 5.1 Interest..................................................................................................29
--------
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans..................................................32
--------------------------------------------------------
SECTION 5.3 Fees......................................................................................................32
----
SECTION 5.4 Manner of Payment.........................................................................................33
-----------------
SECTION 5.5 Crediting of Payments and Proceeds........................................................................34
----------------------------------
SECTION 5.6 Adjustments...............................................................................................34
-----------
SECTION 5.7 Nature of Obligations of Lenders Regarding Advances; Assumption by the Administrative Agent...............34
-------------------------------------------------------------------------------------------
SECTION 5.8 Changed Circumstances.....................................................................................35
---------------------
SECTION 5.9 Indemnity.................................................................................................37
---------
SECTION 5.10 Capital Requirements.......................................................................................37
--------------------
SECTION 5.11 Taxes......................................................................................................37
-----
i
SECTION 5.12 Reimbursement Conditions; Replacement of Lenders...........................................................39
------------------------------------------------
SECTION 5.13 Security...................................................................................................40
--------
ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING..................................................................40
--------------------------------------------
SECTION 6.1 Closing...................................................................................................40
-------
SECTION 6.2 Conditions to Closing and Initial Advances................................................................40
------------------------------------------
SECTION 6.3 Conditions to All Advances................................................................................44
--------------------------
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE BORROWER...............................................................45
----------------------------------------------
SECTION 7.1 Representations and Warranties............................................................................45
------------------------------
SECTION 7.2 Survival of Representations and Warranties, Etc...........................................................51
-----------------------------------------------
ARTICLE VIII FINANCIAL INFORMATION AND NOTICES...........................................................................52
---------------------------------
SECTION 8.1 Financial Statements and Projections......................................................................52
------------------------------------
SECTION 8.2 Officer's Compliance Certificate..........................................................................54
--------------------------------
SECTION 8.3 Accountants' Certificate..................................................................................54
------------------------
SECTION 8.4 Other Reports.............................................................................................54
-------------
SECTION 8.5 Notice of Litigation and Other Matters....................................................................54
--------------------------------------
SECTION 8.6 Accuracy of Information...................................................................................55
-----------------------
ARTICLE IX AFFIRMATIVE COVENANTS.........................................................................................55
---------------------
SECTION 9.1 Preservation of Corporate Existence and Related Matters...................................................55
-------------------------------------------------------
SECTION 9.2 Maintenance of Property...................................................................................56
-----------------------
SECTION 9.3 Insurance.................................................................................................56
---------
SECTION 9.4 Accounting Methods and Financial Records..................................................................56
----------------------------------------
SECTION 9.5 Payment and Performance of Obligations....................................................................56
--------------------------------------
SECTION 9.6 Compliance With Laws and Approvals........................................................................56
----------------------------------
SECTION 9.7 Environmental Laws........................................................................................56
------------------
SECTION 9.8 Compliance with ERISA.....................................................................................57
---------------------
SECTION 9.9 Compliance With Agreements................................................................................57
--------------------------
SECTION 9.10 Visits and Inspections....................................................................................57
----------------------
SECTION 9.11 Additional Subsidiaries...................................................................................57
-----------------------
SECTION 9.12 Use of Proceeds...........................................................................................58
---------------
SECTION 9.13 Intercompany Loans........................................................................................58
------------------
SECTION 9.14 Assignment of Federal Claims..............................................................................58
----------------------------
SECTION 9.15 Inactive Subsidiaries.....................................................................................59
---------------------
SECTION 9.16 Further Assurances........................................................................................59
------------------
ARTICLE X FINANCIAL COVENANTS............................................................................................59
-------------------
SECTION 10.1 Senior Leverage Ratio.....................................................................................59
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SECTION 10.2 Total Leverage Ratio......................................................................................59
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SECTION 10.3 Interest Coverage Ratio...................................................................................60
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SECTION 10.4 Capital Expenditures......................................................................................60
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SECTION 10.5 Minimum EBITDA............................................................................................60
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SECTION 10.6 Working Capital Liquidity Ratio...........................................................................61
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ARTICLE XI NEGATIVE COVENANTS............................................................................................61
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SECTION 11.1 Limitations on Debt.......................................................................................61
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SECTION 11.2 Limitations on Liens......................................................................................62
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SECTION 11.3 Limitations on Loans, Advances, Investments and Acquisitions..............................................63
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SECTION 11.4 Limitations on Mergers and Liquidation....................................................................65
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SECTION 11.5 Limitations on Sale of Assets.............................................................................66
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SECTION 11.6 Limitations on Dividends and Distributions................................................................66
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SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock.....................................................67
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SECTION 11.8 Transactions with Affiliates..............................................................................67
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SECTION 11.9 Certain Accounting Changes; Organizational Documents......................................................67
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SECTION 11.10 Amendments; Payments and Prepayments of Subordinated Debt.................................................67
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SECTION 11.11 Restrictive Agreements....................................................................................68
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SECTION 11.12 Nature of Business........................................................................................68
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SECTION 11.13 Impairment of Security Interests..........................................................................68
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ARTICLE XII DEFAULT AND REMEDIES.........................................................................................68
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SECTION 12.1 Events of Default.........................................................................................68
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SECTION 12.2 Remedies..................................................................................................72
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SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc...........................................................73
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ARTICLE XIII THE ADMINISTRATIVE AGENT....................................................................................73
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SECTION 13.1 Appointment...............................................................................................73
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SECTION 13.2 Delegation of Duties......................................................................................73
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SECTION 13.3 Exculpatory Provisions....................................................................................74
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SECTION 13.4 Reliance by the Administrative Agent......................................................................74
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SECTION 13.5 Notice of Default.........................................................................................74
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SECTION 13.6 Non-Reliance on the Administrative Agent and Other Lenders................................................75
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SECTION 13.7 Indemnification...........................................................................................75
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SECTION 13.8 The Administrative Agent in Its Individual Capacity.......................................................76
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SECTION 13.9 Resignation of the Administrative Agent; Successor Administrative Agent...................................76
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SECTION 13.10 Syndication Agent and Documentation Agent.................................................................76
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ARTICLE XIV MISCELLANEOUS................................................................................................76
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SECTION 14.1 Notices...................................................................................................76
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SECTION 14.2 Expenses; Indemnity.......................................................................................77
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SECTION 14.3 Set-off...................................................................................................78
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SECTION 14.4 Governing Law.............................................................................................78
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SECTION 14.5 Consent to Jurisdiction...................................................................................78
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SECTION 14.6 Binding Arbitration; Waiver of Jury Trial.................................................................79
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SECTION 14.7 Reversal of Payments......................................................................................80
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SECTION 14.8 Injunctive Relief; Punitive Damages.......................................................................80
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SECTION 14.9 Accounting Matters........................................................................................80
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SECTION 14.10 Successors and Assigns; Participations....................................................................81
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SECTION 14.11 Amendments, Waivers and Consents..........................................................................84
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SECTION 14.12 Performance of Duties.....................................................................................85
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SECTION 14.13 All Powers Coupled with Interest..........................................................................85
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SECTION 14.14 Survival of Indemnities...................................................................................85
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SECTION 14.15 Titles and Captions.......................................................................................85
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SECTION 14.16 Severability of Provisions................................................................................85
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SECTION 14.17 Counterparts..............................................................................................85
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SECTION 14.18 Term of Agreement.........................................................................................86
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SECTION 14.19 Inconsistencies with Other Documents; Independent Effect of Covenants.....................................86
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EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit A-3 - Form of Term Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Term Loan Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Collateral Agreements
Exhibit J - Form of Intercompany Subordination Agreement
Exhibit K - Form of Assignment of Government Contract
Exhibit L - Form of Reaffirmation of Documents
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 7.1(a) - Jurisdictions of Organization and Qualification
Schedule 7.1(c) - Subsidiaries and Capitalization
Schedule 7.1(f) - Tax Matters
Schedule 7.1(h) - Environmental
Schedule 7.1(i) - Multiemployer Plans
Schedule 7.1(l) - Material Contracts
Schedule 7.1(m) - Labor and Collective Bargaining Agreements
Schedule 7.1(t) - Debt and Guaranty Obligations
Schedule 7.1(u) - Litigation
Schedule 7.1(y) - Bank Accounts
Schedule 11.2 - Existing Liens
Schedule 11.3 - Existing Loans, Advances and Investments
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