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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of this 12th day of
December, 1996, by and between CENTRAL PARKING CORPORATION, a Tennessee
corporation ("CPC"), CENTRAL PARKING SYSTEM, INC., a Tennessee corporation
("CPS"), and CENTRAL PARKING SYSTEM REALTY, INC. a Tennessee corporation
("CPSR") (CPC, CPS, and CPSR are jointly and severally referred to herein as
"Borrowers"), SUNTRUST BANK, NASHVILLE, N.A. ("STB"), and the other banks and
lending institutions who become Lenders pursuant to Section 12.12 herein (STB
and such other banks and lending institutions are referred to collectively as
the "Lenders"), and SUNTRUST BANK, NASHVILLE, N.A., Agent in its capacity as
agent for the Lenders and each successive agent for such Lenders as may be
appointed from time to time pursuant to Article XII herein (the "Agent").
RECITALS
1. The Borrowers desire that the Lenders extend the Borrowers credit
pursuant to the terms of this Credit Agreement.
2. The Lenders are willing to extend the Borrowers credit pursuant to
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
Article I. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings, unless the context expressly otherwise requires:
The terms defined in this article have the meanings attributed to them
in this article. Singular terms shall include the plural as well as the
singular, and vice versa. Words of masculine, feminine or neuter gender shall
mean and include the correlative words of other genders.
All references herein to a separate instrument are to such separate
instrument as the same may be amended or supplemented from time to time pursuant
to the applicable provisions thereof.
All accounting terms not otherwise defined herein have the meanings
assigned to them, and all computations herein provided for shall be made, in
accordance with generally accepted accounting principles applied on a consistent
basis. All references herein to "generally accepted accounting principles" refer
to such principles as they exist at the date of application thereof.
All references herein to designated "Articles", "Sections" and other
subdivisions or to lettered Exhibits are to the designated Articles, Sections
and other subdivisions hereof and the Exhibits annexed hereto unless the context
otherwise clearly indicates. All Article, Section, other subdivision and Exhibit
captions herein are used for reference only and in no way limit or describe the
scope or intent of, or in any way affect, this Agreement.
"Advance" or "Advances" shall mean any and all amounts
advanced by Lenders to or for the account of Borrowers hereunder or
under the Revolving Credit Loan and all amounts advanced by the Swing
Line Lender under the Swing Line Loan, including, without limitation,
advances of loan proceeds, payments in overdraft, and amounts
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evidenced by Letters of Credit. The terms "Advance" and "Loan" are used
interchangeably in this Agreement.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with such
specified Person. For purposes of this definition, "control" when used
with respect to any specified Person means the power to direct or cause
the direction of the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controls" and "controlled" have
meanings correlative to the foregoing.
"Agent" means SunTrust Bank, Nashville, N.A. or its successor
as appointed pursuant to the provisions of Article XII herein.
"Agreement" means this Credit Agreement (including all
exhibits hereto) as the same may be modified, amended, or supplemented
from time to time.
"Applicable Margin" means:
(i) From the Closing Date through that date which is
the earlier of the St. Louis JV Sale or April 30, 1997: 1.50%
per annum;
(ii) From the earlier of the St. Louis JV Sale or
April 30, 1997 through that date which is five (5) Business Days from
Agent's receipt of CPC's quarterly consolidated Financial Statements
for the period ending March 31, 1997: 1.25% per annum.
(iii) From that date which is five (5) Business Days
from Agent's receipt of CPC's quarterly consolidated Financial
Statements for the period ending
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March 31, 1997 through that date which is five (5) Business
Days from Agent's receipt of a senior unsecured debt rating
from Standard and Poor's Corporation or Xxxxx'x Investors
Services, Inc. for CPC (on a consolidated basis), the
Applicable Margin shall be determined in accordance with the
following table:
CPC's Ratio of
Funded Debt/EBITDA
CPC's Ratio of
Funded Debt/
Total Capitalization >3.0 <3.0/>2.0 <2.0>1.0 <1.0
>0.50 1.25% 1.0% .75% .625%
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<0.50/>040 1.0% .75% .625% .50%
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<0.40/>0.30 .75% .625% .50% .375%
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<0.30 .625% .50% .375% .25%
For purposes of determining the Applicable Margin in
the table set forth above, CPC's ratios (as determined on a
consolidated basis) of Funded Debt to EBITDA and Funded Debt
to Total Capitalization will be measured quarterly on the
Determination Date; and
(iv) From that date which is five (5) Business Days
from Agent's receipt of the senior unsecured debt rating from
Standard and Poor's Corporation or Xxxxx'x Investors Services,
Inc. for CPC (on a consolidated basis) until the Maturity
Date, the Applicable Margin shall be based on the most
recently published rating as follows:
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Standard & Poor's Applicable
and Xxxxx'x Rating Margin
Lower than BB+ or Bal 1.25% per annum
BB+ or Bal 1.00% per annum
BBB- or Baa3 .75% per annum
BBB or Baa2 .50% per annum
BBB+ or Baal .375% per annum
A- or A3 or above .25% per annum
"Applicable Rate" means either the Base Rate Option or the
LIBOR Rate Option, except in the case of an Advance under the Swing
Line Loan, the Applicable Rate shall mean the Swing Line Rate.
"Assignment and Acceptance" means an Assignment and Acceptance
form executed by a Lender assigning its interest in the Revolving
Credit Loan, or any portion therein (other than as participation), to
an Eligible Assignee in a form reasonably satisfactory to Agent.
"Base Rate" means the rate of interest equal to the higher of
(i) the rate of interest most recently announced by Agent as its
reference, base, or prime lending rate, as the case may be, for Dollar
loans in the United States; or (ii) the Federal Funds Rate (as in
effect from time to time) plus one-half of one percent (1/2%) per
annum. The Base Rate is determined daily.
"Base Rate Option" shall mean that rate of interest equal to
the Base Rate.
"Borrowers" shall have the same meaning attributed to that
term in the preamble to this Agreement.
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"Borrowing Request" means a request in the form of Exhibit A
hereto submitted by CPC on behalf of Borrowers for an Advance as
described in Section 2.05 of this Agreement.
"Business Day" means any day other than a Saturday, Sunday or
day on which commercial banks are authorized to close for business in
New York City or the State of Tennessee and if the applicable Business
Day relates to any Advances made under the LIBOR Rate Option, any day
on which dealings are carried out in the London interbank market.
"Closing Date" means the 12th day of December, 1996.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
"Conditions Precedent" means those matters or events that must
be completed or must occur or exist prior to Lenders' being obligated
to fund any Advance, including, but not limited to, those matters
described in Article V hereof.
"Consolidated Entity" or "Consolidated Entities" means: (a)
the Borrowers, (b) all present and future Guarantors, (c) all present
and future Subsidiaries, Controlled Partnerships, and Controlled LLC's
of any of the Borrowers or Guarantors, and (d) any Person the financial
statements of which are consolidated with any other Consolidated Entity
identified in subparts (a), (b), and (c) hereof.
"Consolidated Net Income" shall mean for any fiscal period the
consolidated net income before extraordinary items of CPC and all
Persons whose financial statements are consolidated with those of CPC,
as calculated in accordance with GAAP.
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"Consolidated Net Worth" means the excess of (A) total assets
over (B) total liabilities, for CPC and all Persons whose financial
statements are consolidated with those of CPC, as determined in
accordance with GAAP.
"Controlled LLC" means a limited liability company, the
ownership and management of which is held by and/or controlled by any
of the Borrowers or any Consolidated Entity.
"Controlled Partnership" means a general partnership or joint
venture of which any of the Borrowers or any other Consolidated Entity
is a general partner or joint venturer, or a limited partnership which
has one of the Borrowers or any other Consolidated Entity as a general
partner and with respect to which general partnership, joint venture,
or limited partnership, the Borrowers or any other Consolidated Entity
serving as general partner or joint venturer is entitled to receive not
less than 51% of any distributions of cash or other Property made to
the partners or joint venturers thereof.
"Debt" means, with respect to any Person, all obligations of
such Person, contingent or otherwise, which in accordance with GAAP
would be classified on a balance sheet of such Person as liabilities of
such Person, but in any event including (a) liabilities secured by any
mortgage, pledge or lien existing on Property owned by such Person and
subject to such mortgage, pledge or lien, whether or not the liability
secured thereby shall have been assumed by such Person, (b) all
indebtedness and other similar monetary obligations of such Person, (c)
all guaranties, obligations in respect of letters of credit,
endorsements (other than endorsements of negotiable instruments for
purposes of collection in the ordinary course of business), obligations
to purchase goods or services for the purpose of supplying funds for
the purchase or payment of Debt of
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others and other contingent obligations in respect of, or to purchase,
or otherwise acquire, or advance funds for the purchase of, Debt of
others, (d) all obligations of such Person to indemnify another Person
to the extent of the amount of indemnity, if any, which would be
payable by such Person at the time of determination of Debt and (e) all
obligations of such Person under capital leases.
"Default Rate" means interest rate equal to two percent (2%)
per annum above the Base Rate.
"Default" or "Event of Default" means the occurrence of any of
the events specified in Section 8.01 hereof, whether or not any
requirement for notice or lapse of time or other condition precedent
has been satisfied.
"Default Conditions" or "Default Condition" means the
occurrence of any of the events specified in Section 8.03 hereof.
"Determination Date" shall be that date which is five (5)
Business Days subsequent to Agent's receipt of CPC's most recent
Financial Statements and most recent quarterly consolidated
calculations of the Funded Debt to EBITDA Ratio and the Funded Debt to
Total Capitalization Ratio.
"EBITDA" (Earnings Before Interest, Taxes, Depreciation and
Amortization) means for CPC as determined on a consolidated basis, for
any period, an amount equal to the sum of: (A) all pre-tax income, plus
(B) depreciation, plus (C) amortization, plus (D) total interest
expense (net of interest income).
"Eligible Assignee" means: (i) a commercial bank organized
under the laws of the United States or any state thereof having total
assets in excess of $1,000,000,000 or
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any commercial finance or asset based lending Affiliate of any such
commercial bank which has complied with Section 12.12 herein, or (ii)
any Lender.
"Environmental Law" means any federal, state, or local law,
statute, ordinance, or regulation applicable or pertaining to health,
industrial hygiene, waste materials, removal of waste materials, oil,
gas, underground storage tanks, Hazardous Substances, other
environmental conditions on, under, or affecting any of the Borrowers'
Property.
"Equity Proceeds" means the net proceeds obtained by any
Consolidated Entity through the public or private placement of shares
of stock of any Consolidated Entity or the issuance of subordinated
debt of any Consolidated Entity (the form, substance, and terms of
which subordinated debt shall first be determined to be acceptable to
Lenders).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, including (unless the context
otherwise requires) any rules or regulations promulgated thereunder.
"Facing Fee" means the product of (a) .125% multiplied by (b)
the face amount of any Letter of Credit.
"Federal Funds Rate" means for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with member banks of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of Atlanta, or, if such rate is not so published for any
day that is a Business Day, the average of the
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quotations for such day on such transactions received by the Agent from
three (3) Federal funds brokers of recognized standing selected by the
Agent.
"Financial Statements" means (i) the consolidated financial
statement or statements of Borrowers and Consolidated Entities,
described or referenced in Section 4.06 hereof and delivered with this
Agreement to Agent for distribution to Lenders, and (ii) subsequent
financial statements required to be provided pursuant to this
Agreement.
"Fiscal Quarter" means each of the quarters of the Fiscal Year
ending on the last day of each March, June, September, and December.
"Fiscal Year" or "Annually" means the twelve-month accounting
period ending September 30th of each year and presently used by the
Borrowers respectively as their fiscal year for accounting purposes.
"Funded Debt" shall mean, without duplication, all
indebtedness for money borrowed, purchase money mortgages, capitalized
leases, amounts evidenced by the aggregate face amount of all
outstanding letters of credit, conditional sales contracts and similar
title retention debt instruments, all Debt guaranteed by CPC and all
Persons whose financial statements are consolidated with the financial
statement of CPC, and all other direct and contingent Debt. The
calculation of Funded Debt shall include all Funded Debt of CPC and all
Persons whose financial statements are consolidated with the financial
statements of CPC, plus all Funded Debt of other Persons, which has
been guaranteed by CPC and any Person whose financial statements are
consolidated with the financial statements of CPC or which is supported
by a letter of credit issued for the account of CPC and any Person
whose financial statements are consolidated with the
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financial statements of CPC, or as to which and to the extent which CPC
and any other Person whose financial statements are consolidated with
the financial statements of CPC or their assets have become liable for
payment thereof.
"Funding Account" shall mean that certain account maintained
by CPC with Agent, bearing account no. ________.
"GAAP" means generally accepted accounting principles in the
United States.
"Guarantor" and "Guarantors" mean each and all of Central
Parking Systems of the U.K. and all other Person described on Exhibit G
herein.
"Guaranty" and "Guarantees" mean the guaranty agreements
executed by each of the Guarantors in form and substance approved by
Lenders.
"Hazardous Substances" means those substances included within
the definition of hazardous substances, hazardous materials, toxic
substances, or solid waste under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
ss. 9601, et seq.; the Resource Conservation and Recovery Act of 1976,
42 U.S.C. ss. 6901, et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. ss. 1801, et seq.; any applicable state law and in the
regulations promulgated pursuant to such acts and laws, and such other
substances, materials, and waste which are or become regulated under
any Environmental Law.
"Interest Expense" shall mean the aggregate interest expense
and amortization of deferred loan costs of CPC and all Persons whose
financial statements are consolidated with the financial statement of
CPC, on a consolidated basis for such period (calculated without regard
to any limitations on the payment thereof), imputed interest on
capitalized
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lease obligations of CPC and all Persons whose financial statements are
consolidated with the financial statement of CPC, and net costs under
interest rate protection agreements for CPC and all Persons whose
financial statements are consolidated with the financial statements of
CPC, all as determined in conformity with GAAP.
"Interest Rate Period" shall be applicable only to Advances
calculated using the LIBOR Rate Option, and shall mean a one month, two
month, three month, or six month time period selected by Borrowers
pursuant to Section 2.04 herein. No Interest Rate Period may end on a
date beyond the Maturity Date.
"Lender" or "Lenders" means STB, the other banks and lending
institutions listed on the signature pages hereof and each permitted
assignee thereof, if any, pursuant to Section 12.12, but shall not
include any participant.
"Letter of Credit Application Agreement" means that certain
Application and Agreement for Issuance of a Letter of Credit in the
form of Exhibit B hereto or any other similar form required by the
Agent appropriately completed by any one of the Borrowers pursuant to
Section 2.02(a) herein.
"Letter of Credit Fee" means an amount equal to the product
of: (a) the Applicable Margin effective as of the date the Letter of
Credit is issued, multiplied by (b) the face amount of the Letter of
Credit.
"Letters of Credit" has the same meaning as set forth in
Section 2.02 herein.
"LIBOR Rate" means the offered rates for deposits in U.S.
Dollars for, as applicable, either one (1) month periods, two (2) month
periods, three (3) month periods, or six (6) month periods, as selected
by Borrowers in accordance with the terms of
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Section 2.04, as quoted on the Telerate System subscribed to by Agent,
and which appears on Telerate Page 3750 as of 11:00 a.m., London time,
two (2) Business Days prior to the beginning of any applicable Interest
Rate Period. If any of such one-month or two-month or three-month or
six-month rate, as the case may be, is unavailable on the Telerate
System, then such rate shall be determined by and based on any other
interest rate reporting service of generally recognized standing
designated in advance in writing by the Agent to the Borrowers.
"LIBOR Rate Option" means that rate of interest equal to the
LIBOR Rate, plus the Applicable Margin.
"Lien" means any interest in Property securing an obligation
owed to, or a claim by, a Person other than the owner of the Property,
whether such interest is based on the common law, statute, or contract,
and including, but not limited to, the lien or security interest
arising from a mortgage, encumbrance, pledge, security agreement,
conditional sale, or trust receipt or a lease, consignment, or bailment
for security purposes. The term "Lien" shall include reservations,
exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases, and other title exceptions and
encumbrances affecting the Property. For the purposes of this
Agreement, Borrowers shall be deemed to be the owner of any Property
that any of Borrowers has acquired or holds subject to a conditional
sale agreement, financing lease, or other arrangement pursuant to which
title to the Property has been retained by or vested in some other
Person for security purposes.
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"Loan" or "Loans" means any borrowing by Borrowers under this
Agreement, and/or any extension of credit by Lenders or Swing Line
Lender to or for Borrowers pursuant to this Agreement, the Revolving
Credit Loan, the Swing Line Loan, or any other Loan Document, including
any renewal, amendment, extension, or modification thereof.
"Loan Documents" means, collectively, each document, paper or
certificate executed, furnished or delivered in connection with this
Agreement (whether before, at, or after the Closing Date), including,
without limitation, this Agreement, the Revolving Credit Notes, the
Swing Line Note, the Guarantees, and all other documents, certificates,
reports, and instruments that this Agreement requires or that were
executed or delivered (or both) at Agent's request.
"Majority Lenders" means those Lenders with an aggregate Pro
Rata Share equal to 66 2/3%.
"Material Subsidiary" means any Consolidated Entity, now owned
or hereafter existing or acquired, which has become a Guarantor and
which comprises ten percent (10%) or more of CPC's EBITDA in any Fiscal
Quarter.
"Maturity Date" for the Revolving Credit Loan and the Swing
Line Loan shall mean the earlier of (i) January 31, 2000, or (ii) the
date the repayment of either or both of the Revolving Credit Loan or
Swing Line Loan is accelerated pursuant to Article VIII herein.
"Maximum Total Amount" means the principal amount of
$150,000,000, as reduced to $120,000,000 pursuant to Section 2.01(b)
herein and as further reduced to
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$85,000,000 pursuant to Section 2.01(c) herein, less the aggregate face
amounts of all outstanding Letters of Credit, less the aggregate
outstanding principal amount of the Swing Line Note.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means: (i) taxes, assessments, and
other governmental charges that are not delinquent or that are being
contested in good faith by appropriate proceedings duly pursued; (ii)
mechanic's, materialmen's, contractors', landlords', or other similar
Liens arising in the ordinary course of business, securing obligations
that are not delinquent or that are being contested in good faith by
appropriate proceedings duly pursued; and (iii) restrictions,
exceptions, reservations, easements, and restrictive covenants
affecting any of Borrowers' real property and that do not materially
and adversely affect such real property.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, government, or any agency or political subdivision
thereof, or any other form of entity.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Borrowers
or any Consolidated Entity and covered by Title IV of ERISA or to which
Section 412 of the Code applies.
"Principal Office" means the principal office of the Agent
located at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
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"Pro Rata Share" means the percentage of interest held by each
of the Lenders as set forth opposite their respective signature hereto,
as such percentage may be adjusted from time to time as a result of
assignments or amendments made pursuant to this Agreement.
"Property" or "Properties" means any interest in any kind of
property or asset, whether real, personal, or mixed, or tangible or
intangible.
"Revolving Credit Loan" means the aggregate amount of all
Advances under the Revolving Credit Notes.
"Revolving Credit Loan Commitment" means, relative to any
Lender, such Lender's obligation to make Advances pursuant to Section
2.01(a) of this Agreement.
"Revolving Credit Note" and "Revolving Credit Notes" means, as
the context may require: (a) any of the revolving credit notes executed
by the Borrowers, jointly and severally, payable to the order of any
Lender, substantially in the form of Exhibit C hereto, originally in
the principal amounts each such Lender's Pro Rata Share bears to the
Maximum Total Amount, evidencing the aggregate indebtedness of the
Borrowers to such Lender resulting from the outstanding Revolving
Credit Loan, as each such Revolving Credit Note may from time to time
be amended, increased, decreased, extended, renewed, restated, and/or
changed in any way, and all other promissory notes accepted from time
to time in amendment, renewal, payment and/or substitution thereof
and/or therefor, and/or (b) collectively, all of the foregoing.
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"Square Industries, Inc. Acquisition" means the acquisition by
CPC of a controlling interest in Square Industries, Inc., a New York
corporation, all as described on Exhibit D hereto.
"St. Louis JV Sale" has the meaning set forth on Exhibit D-1
hereto.
"Subsidiary" means any corporation of which more than fifty
percent (50%) of the issued and outstanding Voting Stock is owned or
controlled at the time as of which any determination is being made
directly or indirectly by any Person.
"Swing Line Lender" shall mean the Agent and its successors
and assigns.
"Swing Line Loan" means all Advances made under the Swing Line
Note up to the Swing Line Subcommitment.
"Swing Line Note" means the revolving credit note of the
Borrowers, jointly and severally, payable to the order of the Swing
Line Lender, in substantially the form of Exhibit E hereto, in the
principal amount of up to $5,000,000 issued pursuant to Section 2.03
herein, as such may be from time to time supplemented, modified,
amended, renewed or extended.
"Swing Line Rate" shall be a rate of interest equal to the
LIBOR Rate Option for one-month periods plus one-half of one percent
(.50%) per annum.
"Swing Line Subcommitment" shall mean $5,000,000.
"Total Capitalization" means an amount equal to the sum of
Funded Debt plus Consolidated Net Worth.
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"Voting Stock" means securities of any class of a corporation,
the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors (or persons
performing similar functions).
Article II. The Credit.
Section 2.01 The Revolving Credit Loan. (a) Subject to the conditions
and pursuant to the terms of the Loan Documents and in reliance upon the
representations, warranties, and covenants set forth in the Loan Documents, in
the aggregate for all Lenders up to the Maximum Total Amount and on any Business
Day occurring prior to the Maturity Date, each Lender severally agrees to make
Advances (relative to such Lender) to the Borrowers under the Revolving Credit
Loan equal to such Lender's Pro Rata Share of the aggregate amount of the
borrowing of total Advances requested by the Borrowers to be made on such day
(that are not requested by the Borrowers to be made under the Swing Line Loan).
(b) On or prior to February 28, 1997, the Borrowers shall cause the
Maximum Total Amount to be permanently reduced to a principal amount of no
greater than $120,000,000; provided that if the Borrowers fail to permanently
reduce the Maximum Total Amount to an amount no greater than $120,000,000 on or
before February 28, 1997, the Borrowers shall pay to Agent no later than March
1, 1997 for distribution to Lenders based on their Pro Rata Share a one-time
commitment fee equal to $225,000. Should the Borrowers fail to permanently
reduce the Maximum Total Amount to an amount no greater than $120,000,000 on or
before February 28, 1997 and should the Borrowers pay to Agent the commitment
fee of $225,000 no later than March 1, 1997, then the Maximum Total Amount may
remain at $150,000,000 until the earlier of the St. Louis JV Sale or April 30,
1997, at which time the Maximum Total Amount shall be reduced
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to $120,000,000. Should the Borrowers comply with the terms of the immediately
preceding sentence, but should the Borrowers fail to reduce the Maximum Total
Amount to $120,000,000 on or before the earlier of the St. Louis JV Sale or
April 30, 1997, then the Borrowers shall be deemed to have breached their
agreements contained herein and an Event of Default shall be deemed to exist.
Should the Borrowers fail to permanently reduce the Maximum Total Amount to an
amount no greater than $120,000,000 on or before February 28, 1997 and should
the Borrowers fail to pay to Agent the commitment fee of $225,000 by March 1,
1997, then the Borrowers shall be deemed to have breached their agreements
contained herein and an Event of Default shall be deemed to exist.
(c) Notwithstanding any provision contained herein or in any Revolving
Credit Note to the contrary, the Borrowers shall cause the Maximum Total Amount
to be permanently reduced to a principal amount of no greater than $85,000,000
upon the earlier to occur of: (i) September 30, 1997, or (ii) notification by
Borrowers to Agent that the Square Industries, Inc. Acquisition will not occur,
or (iii) notification by Borrowers to agent that the Square Industries, Inc.
Acquisition will occur only as a transaction in which the Borrowers exchange
shares of stock for a controlling interest in Square Industries, Inc., or (d)
CPC raises Equity Proceeds of at least $35,000,000.
At any time not more than ten (10) Business Days prior to September 30,
1997 and not less than five (5) Business Days prior to September 30, 1997, the
Borrowers may request that the Lenders extend the date set forth in subpart (i)
of the preceding paragraph from September 30, 1997 to December 31, 1997. The
Borrowers shall submit such a request in writing delivered to Agent and
accompanied by a $50,000 extension fee. The Lenders have no
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obligation to extend the date, but in the event that the Lenders, in the
exercise of their sole discretion, agree to extend the date set forth in subpart
(i) above, the Agent shall so notify the Borrowers in writing prior to September
30, 1997 and the Agent shall distribute the $50,000 extension fee to the Lenders
based on their Pro Rata Share. In the event that the Lenders elect not to extend
the date set forth in subpart (i) above, the Agent shall so notify the Borrowers
in writing prior to September 30, 1997 and the Agent shall return the extension
fee to the Borrowers together with such notice.
In the event that the Lenders extend the date in subpart (i) above to
December 31, 1997, then at any time not more than ten (10) Business Days prior
to December 31, 1997 and not less than five (5) Business Days prior to December
31, 1997, the Borrowers may request that the Lenders extend the date set forth
in subpart (i), as previously extended, from December 31, 1997 to March 31,
1998. The Borrowers shall submit such a request in writing delivered to Agent
and accompanied by a $50,000 extension fee. The Lenders have no obligation to
extend the date, but in the event that the Lenders, in the exercise of their
sole discretion, agree to extend the date, the Agent shall so notify the
Borrowers in writing prior to December 31, 1997 and the Agent shall distribute
the $50,000 extension fee to the Lenders based on their Pro Rata Share. In the
event that the Lenders elect not to extend the date to March 31, 1998, the Agent
shall so notify the Borrowers in writing prior to December 31, 1997 and the
Agent shall return the extension fee to the Borrowers together with such notice.
(d) The Maximum Total Amount available to be advanced under the
Revolving Credit Loan shall be reduced dollar-for-dollar by the sum of: (i) the
face amount of any outstanding Letter of Credit, and (ii) the principal amount
outstanding from time to time under the Swing
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Line Note. In no event shall the Borrowers permit the sum of (x) the face amount
of outstanding Letters of Credit; plus (y) the outstanding principal amount of
the Swing Line Note, plus (z) the outstanding principal amount of the Revolving
Credit Loan to exceed the Maximum Total Amount.
(e) On the terms and subject to the conditions hereof and the Revolving
Credit Notes, and provided no Event of Default or Default Condition shall have
occurred, the Borrowers, jointly and severally, may borrow, repay, and reborrow
under the Revolving Credit Loan.
(f) The failure of any Lender to make an Advance under its Revolving
Credit Loan Commitment shall not relieve any other Lender of its obligations, if
any, hereunder to make Advances under such Lender's Revolving Credit Loan
Commitment, but no Lender shall be responsible for the failure of any other
Lender to make an Advance to be made by such other Lender on the date of any
requested borrowing.
Section 2.02 Letters of Credit. (a) Provided no Event of Default or
Default Condition exists, and subject to the terms and conditions of the Loan
Documents, the Lenders have agreed that the Agent on behalf of the Lenders will
issue to third party beneficiaries on Borrowers' account (or on the account of
any one of the entities comprising the Borrowers), standby letters of credit
("Letters of Credit") in the face amount of up to $40,000,000 in the aggregate;
provided and except, the Borrowers agree that subsequent to January 31, 1997,
Borrowers shall cause the aggregate amount of all outstanding Letters of Credit
to be reduced to a cumulative, aggregate face amount equal to no more than
$15,000,000. Subsequent to January 31, 1997, Agent on behalf of the Lenders
shall not be required to issue Letters of Credit in an aggregate face amount
exceeding $15,000,000. In connection with the issuance of each Letter of Credit,
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the Borrowers shall complete a Letter of Credit Application Agreement, and such
other documentation in form and substance as required by Agent, and the
Borrowers shall cause the Guarantors to guarantee the Borrowers' performance of
such agreements pursuant to a guaranty in form and substance as required by
Agent.
(b) In connection with the issuance of any Letter of Credit, the
Borrowers shall pay to Agent a Letter of Credit Fee calculated on a twelve (12)
month basis and to be apportioned and paid by Agent to each of the Lenders
pursuant to the Pro Rata Share of each Lender; provided that if the term of any
Letter of Credit is in excess of twelve (12) months, the Letter of Credit Fee
shall be increased to include the time period in excess of twelve (12) months;
provided that the Letter of Credit Fee for the $36,400,000 Letter of Credit
issued in connection with the St. Louis JV Sale shall not be annualized but
shall be based on the time period measured from the date of issuance to the
expiration date.
(c) In connection with the issuance of any Letter of Credit, the
Borrowers shall pay to Agent a Facing Fee calculated on a twelve (12) month
basis and to be retained by Agent; provided that if the term of any Letter of
Credit is in excess of twelve (12) months, the Facing Fee shall be increased to
include the time period in excess of twelve (12) months; provided that the
Facing Fee for the $36,400,000 Letter of Credit issued in connection with the
St. Louis JV Sale shall not be annualized but shall be based on the time period
measured from date of issuance to the expiration date.
(d) The Borrowers hereby authorize CPC to act as their agent to request
from Agent the issuance of any Letter of Credit. Any request for the issuance of
a Letter of Credit shall be accompanied by a Letter of Credit Application
Agreement. The Agent agrees to use its best efforts to issue and deliver to CPC
on behalf of the Borrowers (or any one of them) each requested Letter of Credit
within three (3) Business Days following submission by CPC of a properly
completed Letter of Credit Application Agreement.
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(e) No Letter of Credit shall be issued for a term that extends beyond
the Maturity Date. The language of each Letter of Credit, including the
requirements for a draw thereunder, shall be subject to the reasonable approval
of the Agent.
(f) The issuance of any Letter of Credit shall reduce the Borrowers'
ability to receive Advances under the Revolving Credit Loan. Additionally, any
payment by Agent under a Letter of Credit shall be treated as an Advance under
the Revolving Credit Loan, and the terms and provisions of repayment shall be
treated as an Advance under the Revolving Credit Loan.
(g) The Lenders shall participate in all Letters of Credit requested by
CPC on behalf of the Borrowers. Each Lender, upon issuance of a Letter of Credit
by the Agent, shall be deemed to have purchased without recourse a risk
participation from the Agent in such Letter of Credit and the obligations
arising thereunder, in each case in an amount equal to its Pro Rata Share of all
obligations under such Letter of Credit and shall absolutely, unconditionally,
and irrevocably assume, as primary obligor and not as surety, and be obligated
to pay to the Agent therefor and discharge when due, its Pro Rata Share of all
obligations arising under such Letter of Credit. Without limiting the scope and
nature of each Lender's participation in any Letter of Credit, to the extent
that the Agent has not been reimbursed as required hereunder or under any such
Letter of Credit, each such Lender shall pay to the Agent its Pro Rata Share of
such unreimbursed drawing in same day funds on the day of notification by the
Agent of an unreimbursed drawing. The obligation of each Lender to so reimburse
the Agent shall be absolute and unconditional and shall not be affected by the
occurrence of a Default Condition or an Event of Default or any other occurrence
or event.
Section 2.03 Swing Line Loan.
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(a) Swing Line Subcommitment. Subject to and upon the terms
and conditions herein set forth, the Swing Line Lender severally
establishes in favor of the Borrowers, its Swing Line Subcommitment.
The Swing Line Lender, subject to and upon the terms and conditions set
forth herein, from time to time, agrees to make to the Borrowers
Advances under the Swing Line Loan in an aggregate principal amount
outstanding at any time not to exceed the Swing Line Subcommitment.
Borrowers, jointly and severally, shall be entitled to repay and
reborrow Advances under the Swing Line Loan in accordance with the
provisions hereof and the Swing Line Note.
(b) Amount and Terms of Swing Line Loan. Each Advance under
the Swing Line Loan shall be made from the Swing Line Lender at the
Swing Line Rate in accordance with the borrowing procedure specified in
Section 2.05(c). Each Advance under the Swing Line Loan shall be in a
principal amount of not less than $100,000 and shall be in multiples of
$100,000. The Borrowers, jointly and severally, shall be required to
repay any Advance made under the Swing Line Loan in full within thirty
(30) days after the Advance is made.
(c) Repayment of Swing Line Loan by Revolving Credit Loan. If
(i) after giving effect to any request for an Advance, the aggregate
principal amount of the Revolving Credit Loan (including the face
amount of all outstanding Letters of Credit), plus Advances under the
Swing Line Loan would exceed the maximum amount of the respective
Revolving Credit Note held by the Swing Line Lender, or (ii) there are
any outstanding Advances under the Swing Line Loan upon the occurrence
of an Event of Default, then each Lender hereby agrees, upon the
request of the Swing Line Lender,
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to make an Advance under the Revolving Credit Loan in an amount equal
to such Lender's Pro Rata Share of the outstanding principal amount of
the Swing Line Loan (the "Refundable Swing Line Loan") outstanding on
the date such notice is given. On or before 11:00 a.m. (Nashville,
Tennessee time) on the first Business Day following receipt by each
Lender of a request to make the Advances referenced in the preceding
sentence, each such Lender (other than the Swing Line Lender) shall
deposit in an account specified by the Agent to the Lenders from time
to time the amount as requested in same day funds, whereupon such funds
shall be immediately delivered to the Swing Line Lender (and not the
Borrowers) and applied to repay the Refundable Swing Line Loan. On the
day such Advances are made by the Lenders, the Swing Line Lender's Pro
Rata Share of the Refundable Swing Line Loan shall be deemed to be paid
with the proceeds of the Advance made by the Swing Line Lender. Upon
the making of any Advance under the Revolving Credit Loan pursuant to
this subpart (c), the amount so funded shall become due under each
Lender's Revolving Credit Note and shall no longer be owed under the
Swing Line Note. Additionally, the Applicable Rate on such Refundable
Swing Line Loan shall be the LIBOR Rate Option, calculated on a one
month Interest Rate Period. Each Lender's obligation to make Advances
under its Revolving Credit Note referred to in this subpart (c) shall
be absolute and unconditional and shall not be affected by any
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
(d) Purchasing of Participations. In the event that (i) the
Borrowers or any Guarantor is subject to any bankruptcy or insolvency
proceedings, or (ii) if the Swing
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Line Lender otherwise requests, each Lender shall acquire without
recourse or warranty an undivided participation interest in the Swing
Line Loan equal to such Lender's Pro Rata Share by paying to the Swing
Line Lender, in same day funds, an amount equal to such Lender's Pro
Rata Share of the Swing Line Loan. From and after the date on which any
Lender purchases an undivided participation interest in the Swing Line
Loan pursuant to this clause, the Swing Line Lender shall distribute to
such Lender (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participation
interest is outstanding and funded) its ratable amount of all payments
of principal and interest in respect of the Swing Line Loan in like
funds as received; provided, however, that in the event such payment
received by the Swing Line Lender is required to be returned to the
Borrower, such Lender shall return to the Swing Line Lender the portion
of any amounts which such Lender had received from the Swing Line
Lender in like funds. Section 2.04 Interest Rate.
(a) The Applicable Rate for Advances under the Revolving
Credit Loan shall either be the Base Rate Option or the LIBOR Rate
Option, as selected by Borrowers pursuant to the procedure specified in
parts (b) and (c) below. The applicable Rate for the Swing Line Loan
shall be the Swing Line Rate.
(b) So long as the Borrowers comply with Section 2.05 herein,
the Borrowers may elect that any Advance under the Revolving Credit
Loan shall bear interest at either the Base Rate Option or the LIBOR
Rate Option. In the event that the Borrowers fail to designate an
Applicable Rate, or in the event the Borrowers fails to make an
interest rate
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election in strict compliance herewith, then it shall be conclusively
presumed that the Borrowers have selected the LIBOR Rate Option with a
one (1) month Interest Rate Period.
(c) Within two (2) Business Days prior to the expiration of
any applicable Interest Rate Period, the Borrowers shall designate a
new Applicable Rate. In the event that the Borrowers fails to designate
a new Applicable Rate within two (2) Business Days prior to the
expiration of any applicable Interest Rate Period, then it shall be
conclusively presumed that the Borrowers have selected the LIBOR Rate
Option with a one (1) month Interest Rate Period as the Applicable Rate
to be effective on the expiration of such Interest Rate Period.
(d) In the event that the Borrowers select the Base Rate
Option as the Applicable Rate, then the Base Rate Option shall remain
effective until two (2) Business days subsequent to the date Agent
receives notice that Borrowers have elected to change the Applicable
Rate to a LIBOR Rate Option.
(e) Upon the occurrence of an Event of Default, the
indebtedness described herein and all obligations hereunder shall bear
interest at the Default Rate.
(f) All interest shall be calculated on the basis of a 360-day
year and actual days elapsed.
Section 2.05 Borrowing Procedure. (a) In General. The Borrowers hereby
authorize CPC to act as their agent to request from Agent all Advances, and the
Borrowers authorize the Agent to cause all Advances to be deposited into the
Funding Account. Neither the Agent nor the Lenders shall have any obligation to
ensure that CPC distributes Advances in any particular
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manner. Neither the Agent nor the Lenders shall have any liability to any of the
Borrowers or to any Person arising out of or in connection with the manner in
which CPC distributes or disburses monies from the Funding Account. Any one of
the Persons who hold the following titles at CPC is authorized to request an
Advance: Chairman of the Board of Directors, President, or Chief Financial
Officer.
(b) Revolving Credit Loan. CPC shall give the Agent at least three (3)
Business Day's prior written notice of a proposed Advance under the Revolving
Credit Loan by presentation of a Borrowing Request. With regard to requests for
Advances under the Revolving Credit Loan, the following shall apply: (a) in the
event that the Borrowers designate the Base Rate Option as the Applicable Rate,
the requested Advance must be in a minimum amount of $500,000 and in increments
of $100,000; and (b) in the event the Borrowers designate the LIBOR Rate Option
as the requested Applicable Rate, the requested Advance must be in a minimum
amount of $5,000,000 and in increments of $500,000.
(c) Swing Line Note. CPC may give the Agent oral notice of a request
for an Advance under the Swing Line Note no later than 11:00 A.M. (Nashville,
Tennessee time) followed by facsimile transmission sent to Agent. Borrowers
shall specify that such request is a request under the Swing Line Note, and
subject to availability under the Swing Line Note and provided the request is
made no later than 11:00 A.M. (Nashville, Tennessee time), the Agent shall make
the Advance by crediting the Funding Account no later than the close of business
on the day of the borrowing. With regard to requests for Advances under the
Swing Line Loan, the following shall apply: Advances shall be in a minimum
amount of $100,000 and in increments of $100,000.
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(d) No Liability. The Agent and the Lenders shall have no liability to
Borrowers (or to any of them) arising out of their compliance with the borrowing
procedure specified in this Section 2.05, except for acts of gross negligence or
willful misconduct.
(e) Warranty. The giving of notice on behalf of CPC that the Borrowers
are requesting an Advance shall constitute a warranty by the Borrowers that as
of the date of the request and as of the date the Advance is made: (i) no Event
of Default or Default Condition has occurred; and (ii) the representations and
warranties contained in Article IV of this Agreement remain true, correct, and
accurate, except that the representation contained in Section 4.13 herein shall
not be deemed to be a continuing representation.
Section 2.06 Use of Proceeds. Proceeds of the Revolving Credit Loan and
the Swing Line Loan shall be used to finance the acquisition of four (4) parking
garages in the St. Louis, Missouri area, to finance the Square Industries, Inc.
Acquisition, to fund Borrowers' working capital and capital expenditures needs,
for Borrowers' general corporate purposes, and to repay and to cancel all
outstanding amounts owed to STB under a $20,000,000 credit facility.
Section 2.07 Participation. Any Lender shall have the right to enter
into one or more participation agreements with one or more Affiliates, banks, or
financial institutions on such terms and conditions as such Lender shall deem
advisable. Borrowers shall furnish a sufficient number of copies of reports and
certificates to Lenders so that Lenders and each participating lender shall
receive a copy of each such document.
Section 2.08 Term of This Agreement. This Agreement shall be binding on
the Borrowers so long as any portion of the indebtedness described herein
remains outstanding,
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provided and except, Borrowers' representations, warranties, and indemnity
agreements shall survive the payment in full of such indebtedness.
Section 2.09 Payments to Principal Office; Debit Authority. Each
payment under the Revolving Credit Loan shall be made without defense, setoff,
or counterclaim to Agent at its Principal Office in U.S. Dollars for the account
of Lenders and in immediately available funds before 1:00 p.m. (Nashville,
Tennessee time) on the date such payment is due. The Agent may, but shall not be
obligated to, debit the amount of any such payment which is not made by such
time to any deposit account of any of the Borrowers with the Agent. Each payment
under the Swing Line Loan shall be made to Agent at its Principal Office in U.S.
Dollars and in immediately available funds before 1:00 p.m. (Nashville,
Tennessee time) on the date such payment is due.
Section 2.10
(a) Required Prepayment. Whenever the aggregate amount
outstanding under the Revolving Credit Loan exceeds the Maximum Total
Amount, the Borrowers shall immediately pay to Lenders such amounts as
may be necessary to cause the aggregate principal amount outstanding
under the Revolving Credit Loan to be equal to or less than the Maximum
Total Amount. Whenever the amount outstanding under any individual
Revolving Credit Note exceeds the maximum amount permitted to be
outstanding under such Revolving Credit Note, the Borrowers shall
immediately pay to the respective Lender such amounts as may be
necessary to cause the principal amount outstanding under such
Revolving Credit Note to be equal to or less than such Revolving Credit
Note's maximum permitted amount; and whenever the amount outstanding
under the
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Swing Line Note exceeds the maximum amount permitted to be outstanding
under the Swing Line Loan, Borrowers shall immediately pay to Agent
such amounts as may be necessary to cause the principal amount
outstanding under the Swing Line Note to be equal to or less than the
maximum amount permitted to be outstanding under the Swing Line Loan;
(b) Optional Prepayment.
(i) Upon ten (10) days prior written notice delivered
from Borrowers to Agent, the Borrowers may prepay the
Revolving Credit Notes and/or the Swing Line Note in whole or
in part with accrued interest to the date of such prepayment
or the amount prepaid, provided that each partial prepayment
shall be in a principal amount of not less than $5,000,000 in
the case of the Revolving Credit Notes and $10,000 in the case
of the Swing Line Note. Any such prepayments shall be subject
to payment of the amounts described in Section 2.11, in the
manner set forth therein, but not to any other prepayment
charge, fee or premium. All prepayments will be applied first
to unpaid expenses (if any), then to breakage costs (if any),
then to accrued interest, then to principal in the inverse
order of maturity, allocated, in the case of the Revolving
Credit Notes, pro-rata among the Revolving Credit Notes.
(ii) Upon ten (10) days prior written notice
delivered from Borrowers to Agent, the Borrowers may
permanently reduce the maximum principal amount that may be
borrowed under the Revolving Credit Loan; provided that such
reduction shall be in a principal amount of at least
$5,000,000 and in integrals of
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$1,000,000 and provided that such reduction shall also be
subject to the amounts described in Section 2.11 herein. In
the event that a permanent reduction is made by the Borrowers
in the amount that may be borrowed under the Revolving Credit
Loan, the Maximum Total Amount and the Revolving Credit Loan
Commitment shall be reduced accordingly.
Section 2.11 Funding Losses. The Borrowers shall compensate each
Lender, upon such Lender's written request to the Borrowers (which request shall
set forth the basis for requesting such amounts in reasonable detail and which
request shall be made in good faith and which request, in the event of a
prepayment under Section 2.10(b), shall be delivered no later than five (5) days
prior to the date of prepayment), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Loans to which a LIBOR Rate applies in
either case to the extent not recovered by such Lender in connection with the
reemployment of such funds and including loss of anticipated profits), which
such Lender may sustain if (a) any repayment (including mandatory prepayments)
of any amounts to which the LIBOR Rate Option applies occurs on a date that is
not the last Business Day of a month (in the case of Advances to which the
one-month LIBOR Rate applies) or on the last Business Day of the second month
after the beginning of a two-month term (in the case of Advances to which the
two-month LIBOR Rate applies) or the last Business Day of the third month after
the beginning of a three-month term (in the case of Advances to which the
three-month LIBOR Rate applies), or on the last Business Day of the sixth month
after the beginning of a six-month term (in the case of Advances to which the
six-month LIBOR Rate applies), and/or (b) Borrowers fail to borrow any Advance
requested to be borrowed in a
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Borrowing Request after submitting such Borrowing Request, it being understood
that Borrowers shall not be liable for consequential or incidental losses,
expenses or liabilities.
Section 2.12 Apportionment of Payments. Aggregate principal and
interest payments in respect of Advances under the Revolving Credit Loan shall
be apportioned among all outstanding Revolving Credit Loan Commitments to which
such payments relate proportionately to the Lenders' respective Pro Rata Share
of such Revolving Credit Loan Commitments. In the event the Agent receives
payment under the Revolving Credit Loan prior to 1:00 P.M. (Nashville, Tennessee
time), then the Agent shall distribute to each Lender its share of all such
payments received by the Agent no later than the end of the Business Day
following the Business Day of Agent's receipt of such payments. Payments
received subsequent to 1:00 P.M. (Nashville, Tennessee time) shall be treated as
received on the next succeeding Business Day.
Payments received by Agent for the Swing Line Loan shall not be
apportioned, but shall be delivered to the Swing Line Lender.
Section 2.13 Sharing of Payments, Etc. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the indebtedness relating to Advances under the Revolving Credit Loan
(whether voluntary, involuntary, through the exercise of any right of set-off or
otherwise) in excess of its Pro Rata Share of payments or reductions of the
Revolving Credit Loan, such Lender shall forthwith (a) notify each of the other
Lenders and Agent of such receipt, and (b) purchase from the other Lenders such
participations in the Revolving Credit Loan as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them,
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provided that if all or any portion of such excess payment or reduction is
thereafter recovered from such purchasing Lender or additional costs are
incurred, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery or such additional costs, but without interest unless
the Lender obligated to return such funds is required to pay interest on such
funds. Borrowers agree that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrowers in the amount of such participation.
Section 2.14 Right of Offset, Etc. Each of the Borrowers hereby agree
that, in addition to (and without limitation of) any right of set-off, banker's
lien or counterclaim the Lenders may otherwise have, the Lenders shall be
entitled, at their option, to offset balances held by any of them at any of
their offices against any principal of or interest on the indebtedness described
herein which is not paid when due by reason of a failure by the Borrowers to
make any payment when due to such Lender (regardless whether such balances are
then due to the Borrowers), in which case such offsetting Lender shall promptly
notify the Borrowers, provided that its failure to give such notice shall not
affect the validity thereof.
Section 2.15 Commitment Fee. Commencing on March 31, 1997 and on the
last day of each Fiscal Quarter thereafter and on the Maturity Date, the
Borrowers shall pay to the Agent for distribution to the Lenders based on their
Pro Rata Share a commitment fee equal to one quarter of one percent (.25%) per
annum calculated on the average unused portion of the Revolving Credit Loan for
the preceding Fiscal Quarter (or portion thereof); provided that the
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payment made on March 31, 1997 shall be for a time period from the Closing Date
to March 31, 1997. The commitment fee shall be calculated based on a year of 360
days.
Section 2.16 Usury. The parties to this Agreement intend to conform
strictly to applicable usury laws as presently in effect. Accordingly, if the
transactions contemplated hereby would be usurious under applicable law
(including the laws of the United States of America and the State of Tennessee),
then, in that event, notwithstanding anything to the contrary in any Loan
Document or agreement executed in connection with the indebtedness described
herein, Borrowers, Agent, and Lenders agree as follows: (i) the aggregate of all
consideration that constitutes interest under applicable law which is contracted
for, charged, or received under any of the Loan Documents or agreements, or
otherwise in connection with the indebtedness described herein, shall under no
circumstance exceed the maximum lawful rate of interest permitted by applicable
law, and any excess shall be credited on the indebtedness by the holder thereof
(or, if the indebtedness described herein shall have been paid in full, refunded
to Borrowers); and (ii) in the event that the maturity of the indebtedness
described herein is accelerated as a result of any Event of Default or
otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
amount of interest permitted by applicable law, and excess interest, if any, for
which this Agreement provides, or otherwise, shall be cancelled automatically as
of the date of such acceleration or prepayment and, if previously paid, shall be
credited on the indebtedness described herein (or, if the indebtedness shall
have been paid in full, refunded to Borrowers).
Section 2.17 Interest Rate Not Ascertainable, Etc. In the event that
the Agent shall in good faith have determined that on any date for determining
the LIBOR Rate, by reason of any
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changes arising after the date of this Agreement affecting the London interbank
market or the Agent's position in such market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for in
the definition of LIBOR Rate, then, and in any such event, the Agent shall
forthwith give notice (by telephone confirmed in writing) to the Borrowers of
such determination and a summary of the basis for such determination. At the
expiration of any Interest Rate Period then in effect and until the Agent
notifies the Borrowers that the circumstances giving rise to the suspension
described herein no longer exist (which notice shall be given forthwith after
such determination is made by the Agent), all Loans shall bear interest at the
Base Rate Option.
Section 2.18 Illegality. (a) In the event that the Agent shall have
determined any time that the making or continuance of any Advance bearing
interest at the LIBOR Rate Option has become unlawful by compliance by any of
the Lenders in good faith with any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful), then, in any such
event, the Agent shall give prompt notice (by telephone confirmed in writing) to
the Borrowers of such determination and a summary of the basis for such
determination.
(b) Upon the giving of the notice to the Borrower referred to in
Section 2.18(a), the Borrowers' right to elect a LIBOR Rate Option shall be
immediately suspended, and all Advances shall bear interest at the Base Rate
Option.
Section 2.19 Increased Costs. (a) If by reason of (i) after the date
hereof, the introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or in the
interpretation of any law or regulation, or (ii) the
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compliance with any guideline or request from any central bank or other
governmental authority or quasi-governmental authority exercising control over
banks or financial institutions generally (whether or not having the force of
law):
(A) the Agent or any Lender shall be subject to any tax, duty
or other charge with respect to any Advances bearing interest at the
LIBOR Rate Option (all such Advances being collectively referred to as
the "LIBOR Loans") or its obligation to make LIBOR Loans, or the basis
of taxation of payments to the Agent or any Lender of the principal of
or interest on its LIBOR Loans or its obligation to make LIBOR Loans
shall have changed (except for changes in the tax on the overall net
income of the Agent or such Lender, or similar taxes, pursuant to the
laws of jurisdictions with taxing authority over the Agent or such
Lender); or
(B) any reserve (including, without limitation, any reserve
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, the Agent or any Lender
shall be imposed or deemed applicable or any other condition affecting
its LIBOR Loans or its obligation to make LIBOR Loans shall be imposed
on the Agent or any Lender or the London interbank market;
and as a result thereof there shall be any increase in the cost to the Agent or
any Lender of agreeing to make or making, funding or maintaining LIBOR Loans
(except to the extent already included in the determination of the interest rate
for LIBOR Loans), or there shall be a reduction in the amount received or
receivable by the Agent or any Lender, then the Borrowers shall from time to
time, upon written notice from and demand in good faith by the Agent on the
Borrowers,
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pay to the Agent for the account of the Lenders (or any Lender) within five (5)
Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify the Agent or such Lender against such increased cost;
provided, however, that nothing in this section shall require Borrowers to
indemnify the Agent or any Lender for withholding taxes.
(b) If the Agent shall in good faith determine that at any time,
because of the circumstances described in Section 2.19(a)(i) or (ii) arising
after the date of this Agreement affecting the Agent or any Lender or the London
interbank market or the Agent or any Lender's position in such market, the
calculations for the interest rates for LIBOR Loans as determined by the Agent
or any Lender will not adequately and fairly reflect the cost to the Agent or
any Lender of funding such LIBOR Loans, the Agent shall forthwith give notice
(by telephone confirmed in writing) to the Borrowers of such advice, and a
summary of the basis for such determination, and then, and in any such event and
until Agent notifies the Borrowers that such circumstances no longer exist
(which notice shall be given forthwith after such determination is made by the
Agent):
(i) The Borrowers' right to request, and the Agent's and any
Lender's obligation to make or permit portions of the indebtedness
described herein to remain outstanding past the last day of the then
current Interest Rate Period as LIBOR Loans shall be immediately
suspended; and
(ii) After the last day of the then-current Interest Rate
Period, all indebtedness described herein shall bear interest at the
Base Rate Option.
Section 2.20 Extension. Upon the written request of Borrowers given at
any time between December 1st through December 31st, 1999, the Lenders, with the
written consent of all other
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Lenders, may agree to extend the term of this Agreement until January 31, 2001.
Agent shall provide Borrowers with notice of Lenders' decision prior to January
31, 2000.
Article III. Guarantors.
Section 3.01 Guarantors. The joint and several obligations of the
Borrowers under the Loan Documents shall be guaranteed jointly and severally by
each of the Guarantors pursuant to the Guarantees.
Article IV. Representations and Warranties.
To induce Lenders to enter this Agreement and extend credit under this
Agreement, the Borrowers covenant, represent and warrant to Lenders that as of
the date hereof:
Section 4.01 Corporate Existence. Each of the Borrowers is a
corporation duly organized, legally existing, and in good standing under the
laws of the state of its incorporation, and each of the Borrowers is duly
qualified as a foreign corporation in all jurisdictions in which the Property
owned or the business transacted by it makes such qualification necessary,
except where failure to so qualify does not have a material adverse effect on
any of the Borrowers, their respective business, or their respective Properties.
The Borrowers will not commence doing business in any state unless and until the
Borrowers shall have qualified to do business in such state.
Section 4.02 Power and Authorization. Each of the Borrowers is duly
authorized and empowered to execute, deliver, and perform under all Loan
Documents; the respective board of directors of the Borrowers has authorized the
Borrowers to execute and perform under the Loan Documents; and all other
corporate and shareholder action on Borrowers' part required
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for the due execution, delivery, and performance of the Loan Documents has been
duly and effectively taken.
Section 4.03 Binding Obligations. This Agreement is, and the Loan
Documents when executed and delivered in accordance with this Agreement will be,
legal, valid and binding upon and against the Borrowers and their respective
Properties enforceable in accordance with their respective terms, subject to no
defense, counterclaim, set-off, or objection of any kind.
Section 4.04 No Legal Bar or Resultant Lien. The Borrowers' execution,
delivery and performance of the Loan Documents do not constitute a default
under, and will not violate any provisions of the articles of incorporation (or
charter), bylaws, articles of organization, and/or operating agreement of the
respective Borrowers, any contract, agreement, law, regulation, order,
injunction, judgment, decree, or writ to which any of the Borrowers is subject,
or result in the creation or imposition of any Lien upon any Properties of any
of the Borrowers.
Section 4.05 No Consent. The Borrowers' execution, delivery, and
performance of the Loan Documents do not require the consent or approval of any
other Person.
Section 4.06 Financial Condition. The Financial Statements which have
been delivered to Lenders for each of the Borrowers dated September 30, 1995
have been prepared in accordance with GAAP consistently applied, and the
Financial Statements present fairly the financial condition of Borrowers as of
the date or dates and for the period or periods stated therein. No material
adverse change in the financial condition of any of the Borrowers has occurred
since the date of the most recent Financial Statements.
Section 4.07 Investments, Advances, and Guarantees. None of the
Borrowers nor any of the Consolidated Entities has made investments in, advances
to, or guaranties of the obligations
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of any Person, or committed or agreed to undertake any of these actions or
obligations, except as referred to or reflected in the Financial Statements.
Section 4.08 Liabilities and Litigation. None of the Borrowers nor any
of the Consolidated Entities has any material liabilities (individually or in
the aggregate) direct or contingent, except as referred to or reflected in the
Financial Statements. There is no litigation, legal or administrative
proceeding, investigation, or other action of any nature pending or, to the
knowledge of Borrowers threatened against or affecting the Borrowers or any of
the Consolidated Entities that involves the possibility of any judgment or
liability not fully covered by insurance and that may materially and adversely
affect the business or the Properties of any of the Borrowers or the
Consolidated Entities or their respective ability to carry on their business as
now conducted.
Section 4.09 Taxes; Governmental Charges. The Borrowers and each of the
Consolidated Entities have filed or caused to be filed all tax returns and
reports required to be filed and have paid all taxes, assessments, fees, and
other governmental charges levied upon each of them or upon any of their
respective Properties or income, which are due and payable, including interest
and penalties. The Borrowers and each of the Consolidated Entities have made all
required withholding deposits.
Section 4.10 No Default. None of the Borrowers nor any of the
Consolidated Entities is in default in any respect that materially and adversely
affects its business, Properties, operations, or condition, financial or
otherwise, under any indenture, mortgage, deed of trust, credit agreement, note,
agreement, or other instrument to which any of the Borrowers or any of the
Consolidated Entities is a party or by which any of them or their Properties are
bound. None
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of the Borrowers nor any of the Consolidated Entities is in violation of their
respective Articles of Incorporation (or Charter), Bylaws, Articles of
Organization, or operating agreements. No Default Conditions hereunder have
occurred or are continuing as of the date hereof.
Section 4.11 Compliance with Laws, Etc. The Borrowers and the
Consolidated Entities are not in violation of any law, judgment, decree, order,
ordinance, or governmental rule or regulation to which any of the Borrowers or
any of their respective Properties is subject in any respect that materially and
adversely affects their respective business, Properties, or financial condition.
The Borrowers and the Consolidated Entities have not failed to obtain any
license, permit, franchise, or other governmental authorization necessary to the
ownership of any of their respective Properties or to the conduct of their
business, which if not obtained would have or has a material, adverse effect on
any of the Borrowers or Consolidated Entities. All improvements on the real
estate owned by, leased to, or used by Borrowers and the Consolidated Entities
conform in all material respects to all applicable state and local laws, zoning
and building ordinances and health and safety ordinances, and such real estate
is zoned for the various purposes for which such real estate and improvements
thereon are presently being used.
Section 4.12 ERISA. Each of the Borrowers and each of the Consolidated
Entities is in compliance in all material respects with the applicable
provisions of ERISA. None of the Borrowers nor any of the Consolidated Entities
has incurred any "accumulated funding deficiency" within the meaning of ERISA
which is material, and none of the Borrowers nor any of the Consolidated
Entities has incurred any material liability to PBGC in connection with any
Plan.
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Section 4.13 Consolidated Entities. The current Consolidated Entities
are depicted on Exhibit H hereto. Each of the Consolidated Entities is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation or formation, has all requisite power and
authority, licenses, permits, and authorizations necessary to own Property and
to carry on its business as now being conducted, and is qualified to do business
in every jurisdiction required by law, except in those instances where the
failure to be so qualified or to obtain such licenses, permits, and
authorizations does not have a material adverse effect on such Consolidated
Entity.
Section 4.14 No Material Misstatements. No information, exhibit, or
report furnished or to be furnished by Borrowers to Lender in connection with
this Agreement, contain any material misstatement of fact or fail to state any
material fact, the omission of which would render the statements therein
materially false or misleading.
Section 4.15 Solvency. Each of the Borrowers is solvent. Each of the
Borrowers is generally paying its debts as they mature and the fair value of
Borrowers' assets substantially exceeds the sum total of their respective
liabilities.
Section 4.16 Regulation U. None of the Borrowers is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System. No part
of the indebtedness described herein shall be used at any time to purchase or to
carry margin stock within the meaning of Regulation U or to extend credit to
others for the purpose of purchasing or carrying any margin stock if to do so
would cause the Lenders to violate the provisions of Regulation U.
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Section 4.17 Filings. To the date hereof, CPC has filed all reports and
statements required to be filed with the Securities and Exchange Commission. As
of their respective dates, the reports and statements referred to above complied
in all material respects with all rules and regulations promulgated by the
Securities and Exchange Commission and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section 4.18 Title, Etc. Each of the Borrowers and each of the
Consolidated Entities has good title to its Properties, free and clear of all
Liens except those referenced or reflected in the Financial Statements, and
except for any defects in title which would not have a material adverse effect
on the business, Properties, financial condition or operations of the Borrowers
and the Consolidated Entities or on the ability of the Borrowers to perform
their respective obligations under this Agreement or any of the other Loan
Documents. Borrowers and the Consolidated Entities possess all trademarks,
copyrights, trade names, patents, licenses, and rights therein, adequate for the
conduct of its business as now conducted and presently proposed to be conducted,
except for such that would not have a material adverse effect on the business,
Properties, financial condition or operations of the Borrowers or the
Consolidated Entities or on the ability of the Borrowers to perform their
respective obligations under this Agreement or any of the other Loan Documents.
Section 4.19 Investment Company Act. None of the Borrowers nor any of
the Consolidated Entities is an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
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Section 4.20 Personal Holding Company; Subchapter S. None of the
Borrowers are a "personal holding company" as defined in Section 542 of the
Code, and none of the Borrowers are a "Subchapter S" corporation within the
meaning of the Code.
Article V. Conditions Precedent.
Section 5.01 Initial Conditions. Lenders' obligation to extend credit
and to issue any Letter of Credit and Swing Line Lender's obligation to make an
Advance under the Swing Line Loan hereunder is subject to the Conditions
Precedent that Agent shall have received (or agreed in writing to waive or defer
receipt of) all of the following, each duly executed, dated and delivered as of
the date hereof, in form and substance satisfactory to Agent and its counsel:
(a) Notes and Loan Documents. This Agreement, the Revolving
Credit Notes, the Swing Line Note, the Guarantees of each of the
Guarantors, any Letter of Credit Application Agreements, and other
documents executed in connection with this Agreement (the "Loan
Documents").
(b) Resolutions. Certified copies of resolutions of the Board
of Directors of each of the corporate Borrowers and each of the
Guarantors authorizing or ratifying the execution, delivery, and
performance, respectively, of Loan Documents to which each is a party.
(c) Certificate of Existence. A certificate of existence of
each of the Borrowers and each of the Guarantors from the state or
commonwealth in which each of the Borrowers and Guarantors is
incorporated or organized, which certificate shall contain no facts
objectionable to Agent.
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(d) Consents, Etc. Certified copies of all documents
evidencing any necessary corporate action, consents, and governmental
approvals (if any) with respect to this Agreement and the Loan
Documents.
(e) Officer's Certificate. A certificate of the secretary or
any assistant secretary of each of the Borrowers and each of the
Guarantors certifying: (i) the names of the officer or officers of each
of the Borrowers and each of the Guarantors authorized to sign the
respective Loan Documents, together with a sample of the true signature
of such officer(s), and (ii) as to representations and warranties of,
and litigation involving, each of the Borrowers and each of the
Guarantors.
(f) Charter and By-Laws and Organizational Documents. A copy
of each of the Borrowers' and the Guarantors' respective by-laws and
charter or articles of incorporation and/or articles of organization
and operating agreement, if applicable, (including all amendments
thereto) certified by the secretary or any assistant secretary of each
of the Borrowers and Guarantors, as applicable, and in the case of the
charter or articles of incorporation, by the Secretary of State of the
state or commonwealth in which each of the Borrowers and the Guarantors
is incorporated, as being true and complete copies of the current
charter or articles of incorporation and by-laws of each of the
Borrowers.
(g) Attorneys Opinion Letter. An opinion letter from counsel
to the Borrowers and the Guarantors opining as to such matters as
required by Agent.
(h) Payment of Fees, Etc. Payment of all outstanding fees and
expenses to Agent, Swing Line Lender, or any Lender, including all of
Agent's reasonable legal fees.
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(i) Other. Such other documents as Agent may reasonably
request.
Section 5.02 All Borrowings. The Lenders' obligation to extend credit
pursuant to this Agreement and to issue any Letter of Credit and Swing Line
Lender's obligation to make an Advance under the Swing Line Loan is subject to
the following additional Conditions Precedent which shall be met each time an
Advance under the Revolving Credit Loan (including the request for the issuance
of a Letter of Credit) or the Swing Line Note is requested and an Advance is
made:
(a) The representations of each of the Borrowers contained in
Article IV are true and correct as of the date of the requested
Advance, with the same effect as though made on the date additional
funds are advanced; (b) There has been no material adverse change in
any of the Borrowers' consolidated financial condition or other
condition since the date of the last borrowing hereunder; (c) No
Default Conditions and no Event of Default have occurred and continue
to exist; (d) No material litigation (including, without limitation,
derivative actions), arbitration proceedings or governmental
proceedings not disclosed in writing by any of the Borrowers to the
Agent prior to the date of the execution and delivery of this Agreement
is pending or known to be threatened against any of the Borrowers or
the Consolidated Entities and no material development not so disclosed
has occurred in any litigation, arbitration proceedings or governmental
proceedings so disclosed, which could reasonably be expected to
adversely affect the financial position or business of any of the
Borrowers or the Consolidated Entities or impair the ability of any of
the Borrowers to perform their respective obligations under this
Agreement or any other Loan Documents.
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Article VI. Affirmative Covenants.
Each of the Borrowers covenants that, during the term of this Agreement
(including any extensions hereof) and until all indebtedness described herein
shall have been finally paid in full, unless Agent shall otherwise first consent
in writing, each of the Borrowers shall:
Section 6.01 Financial Statements and Reports. Promptly furnish to
Agent and to each Lender:
(a) Annual Reports. As soon as available, and in any event
within ninety (90) days after the close of each Fiscal Year of each of
the Borrowers, the audited consolidated Financial Statements of CPC
setting forth the audited consolidated balance sheets of CPC as at the
end of such year, and the audited consolidated statements of income,
statements of cash flows, and statements of retained earnings of CPC
for such year, setting forth in each case in comparative form
(beginning when comparative data are available) the corresponding
figures for the preceding Fiscal Year accompanied by the report of
CPC's certified public accountants, and by an unaudited consolidating
balance sheet and unaudited consolidating statements of income, and
statements of retained earnings of CPC and of each of the Borrowers
duly certified by CPC's chief financial officer as being correct
reflections of the information used for the audited consolidated
Financial Statements. The audit opinion in respect of the Financial
Statements of Borrowers shall be the opinion of a firm of independent
certified public accountants acceptable to Agent and shall be
accompanied by such certificates as reasonably required by Agent;
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(b) Quarterly and Year-to-Date Reports. As soon as available
and in any event within forty-five (45) days after the end of each
Fiscal Quarter, the consolidated balance sheets of CPC and of each of
the Borrowers as of the end of such Fiscal Quarter, and the
consolidated and consolidating statements of income of CPC and of each
of the Borrowers for such quarter and for a period from the beginning
of the Fiscal Year to the close of such Fiscal Quarter, all certified
by the chief financial officer or chief accounting officer of CPC and
of each of the Borrowers as being true and correct to the best of his
or her knowledge;
(c) Compliance Reports. As soon as available and in any event
within forty-five (45) days after the end of each Fiscal Quarter, the
calculations by Borrowers of the financial covenants contained in
Article VII A herein, all in a format similar to that described on
Exhibit F hereto, along with a certificate of compliance certified by
the president or chief financial officer of CPC stating that such
officer has no knowledge of any Event of Default or Default Condition,
or if such officer has obtained such knowledge, disclosing the nature,
details, and period of existence of such event;
(d) SEC Filings and Public Information. At the same time as
they are filed with the Securities and Exchange Commission, copies of
CPC's 10-Q and 10-K reports; and
(e) Other Information. Promptly upon its becoming available,
such other material information about Borrowers, Guarantors, or the
indebtedness described herein as Agent may reasonably request from time
to time.
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All such balance sheets and other Financial Statements referred to in Sections
6.01(a) and (b) hereof shall conform to GAAP on a basis consistent with those of
previous Financial Statements.
Section 6.02 Annual Certificates of Compliance. Concurrently with the
furnishing of the annual Financial Statements pursuant to Section 6.01(a)
hereof, furnish or cause to be furnished to Agent and each Lender a certificate
of compliance in a form reasonably satisfactory to Agent prepared by one of the
nationally recognized "Big Six" accounting firms stating that in making the
examination necessary for their audit they have obtained no knowledge of any
Default Condition or Event of Default, or event which, after notice or lapse of
time (or both), would constitute a Default Condition or Event of Default or, if
they have obtained such knowledge, disclosing the nature, details, and period of
existence of such event.
Section 6.03 Taxes and Other Liens. Pay and discharge promptly all
taxes, assessments, and governmental charges or levies imposed upon any of the
Borrowers or the Consolidated Entities or upon any of their respective income or
Property as well as all claims of any kind (including claims for labor,
materials, supplies, and rent) which, if unpaid, might become a Lien upon any or
all of any of the Borrowers' Property; provided, however, that neither the
Borrowers nor any of the Consolidated Entities shall be required to pay any such
tax, assessment, charge, levy, or claim if the amount, applicability, or
validity thereof shall currently be contested in good faith by appropriate
proceedings diligently conducted and if the Borrowers or the Consolidated
Entities, as applicable, shall establish reserves therefor adequate under GAAP.
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Section 6.04 Maintenance.
(a) Maintain and cause each Consolidated Entity to maintain
its corporate, partnership, joint venture, limited partnership, and/or
limited liability company existence, name, rights, and franchises;
(b) observe and comply and cause each Consolidated Entity to
observe and comply (to the extent necessary so that any failure will
not materially and adversely affect the business or Property of the
Borrowers or the Consolidated Entities) with all applicable laws,
statutes, codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, certificates, franchises, permits,
licenses, authorizations, and requirements of all federal, state,
county, municipal, and other governments; and
(c) maintain and cause each Consolidated Entity to maintain
its Property (and any Property leased by or consigned to it or held
under title retention or conditional sales contracts) in good and
workable condition at all times and make all repairs, replacements,
additions, and improvements to its Property reasonably necessary and
proper to ensure that the business carried on in connection with its
Property may be conducted properly and efficiently at all times.
Section 6.05 Further Assurances. Promptly cure any defects in the
creation, issuance, and delivery of the Loan Documents. Borrowers at their
expense promptly will execute and deliver to Agent upon request all such other
and further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of Borrowers in the Loan
Documents, or to correct any omissions in the Loan Documents, all as may be
reasonably necessary or appropriate in connection therewith.
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Section 6.06 Performance of Obligations.
(a) Pay the indebtedness described herein according to the
terms of the Loan Documents; and
(b) do and perform, and cause to be done and to be performed,
every act and discharge all of the obligations provided to be performed
and discharged by Borrowers under the Loan Documents, at the time or
times and in the manner specified.
Section 6.07 Insurance. Maintain and continue to maintain, and cause
each Consolidated Entity to maintain and continue to maintain, with financially
sound and reputable insurers, insurance satisfactory in type, coverage and
amount to Agent against such liabilities, casualties, risks, and contingencies
and in such types and amounts as is customary in the case of corporations
engaged in the same or similar businesses and similarly situated. Upon request
of Agent, Borrowers will furnish or cause to be furnished to Agent from time to
time a summary of the insurance coverage of Borrowers and the Consolidated
Entities in form and substance satisfactory to Agent and if requested will
furnish Agent copies of the applicable policies.
Section 6.08 Accounts and Records. Keep books of record and account, in
which full, true, and correct entries will be made of all dealings or
transactions in accordance with GAAP, except only for changes in accounting
principles or practices with which Borrowers' certified public accountants
concur and which changes have been reported to Agent in writing and with an
explanation thereof.
Section 6.09 Right of Inspection. Permit and cause each Consolidated
Entity to permit any officer, employee, or agent of Agent or any Lender as may
be designated by Agent to visit and inspect any of the Property of Borrowers or
the Consolidated Entities, to examine
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Borrowers' and the Consolidated Entities' books of record and accounts, to take
copies and extracts from such books of record and accounts, and to discuss the
affairs, finances, and accounts of Borrowers and the Consolidated Entities with
the respective officers, accountants, and auditors of Borrowers and the
Consolidated Entities, all at such reasonable times and as often as Agent may
reasonably desire.
Section 6.10 Notice of Certain Events. Promptly notify Agent if any of
the Borrowers learns of the occurrence of (i) any event that constitutes a
Default Condition or Event of Default together with a detailed statement by a
responsible officer of the steps being taken as a result thereof; or (ii) the
receipt of any notice from, or the taking of any other action by, the holder of
any promissory note, debenture, or other evidence of Debt of any of the
Borrowers or any of the Consolidated Entities with respect to a claimed default,
together with a detailed statement by a responsible officer of the respective
Borrowers or Consolidated Entities specifying the notice given or other action
taken by such holder and the nature of the claimed default and what action the
affected Borrowers or Consolidated Entities are taking or proposes to take with
respect thereto; or (iii) any legal, judicial, or regulatory proceedings
affecting Borrowers or Consolidated Entities in which the amount involved is
material and is not covered by insurance or which, if adversely determined,
would have a material and adverse effect on the business or the financial
condition of any of the Borrowers or any of the Consolidated Entities; or (iv)
any dispute between any of the Borrowers or Consolidated Entities and any
governmental or regulatory authority or any other Person, entity, or agency
which, if adversely determined, might interfere with the normal business
operations of the Borrowers or the Consolidated Entities; or (v) any material
adverse changes, either individually or in the aggregate, in the
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assets, liabilities, financial condition, business, operations, affairs, or
circumstances of any of the Borrowers or the Consolidated Entities from those
reflected in the Financial Statements or from the facts warranted or represented
in any Loan Document.
Section 6.11 ERISA Information and Compliance. Comply and cause each of
the Consolidated Entities to comply with ERISA and all other applicable laws
governing any pension or profit sharing plan or arrangement to which any of the
Borrowers or any of the Consolidated Entities is a party. The Borrowers shall
provide and shall cause each of the Consolidated Entities to provide Agent with
notice of any "reportable event" or "prohibited transaction" or the imposition
of a "withdrawal liability" within the meaning of ERISA.
Section 6.12 Management. Give immediate notice to Agent of any material
change in the management of any of the Borrowers.
Section 6.13 Additional Guarantees. Within thirty (30) days after any
of the Borrowers or any of the Consolidated Entities acquires any Person that is
or becomes a Consolidated Entity; Borrowers shall cause such new Consolidated
Entity to execute a Guaranty in the form of the Guarantees executed by the
Guarantors, and to deliver to Agent such Guarantees and other documents,
instruments and items with respect thereto that are similar to those documents,
instruments and items delivered by the Guarantors with regard to their
Guarantees. Additionally, in such case Agent shall, should Lender so request, be
entitled to receive a counsel's opinion letter issued by counsel acceptable to
Agent regarding such matters involving such Consolidated Entity as may be
required by Agent. Immediately upon any Person becoming a Consolidated Entity,
Borrowers shall give notice thereof to Agent. Borrowers shall pay the costs and
expenses, including without limitation Agent's legal fees and expenses, in
connection with the
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preparation, negotiation, execution and review of the Guaranty of such
Consolidated Entity and the other items described in this Section.
Section 6.14 Permitted Acquisitions, Investments, Loans and Advances.
Provided that no breach, default, Default Condition or Event of Default has
occurred under this Agreement or any of the other Loan Documents, and provided
that no "Event of Default" has occurred under any Guaranty, Borrowers may make
the following acquisitions, investments, loans and advances without the
necessity of obtaining the consent of Agent or any Lender (but Borrowers agree
to deliver prompt notice thereof to Agent and to each Lender, with such
information relative thereto as Agent may request):
(a) Acquisitions for a value of $10,000,000 or less per
acquisition, of Property to be wholly-owned by any of the Borrowers, or
of a Person that will be a wholly-owned Subsidiary of any of the
Borrowers;
(b) Investments, loans, and advances made to Borrowers and to
any Guarantors; and
(c) Prior to December 31, 1997, investments, loans and
advances to any Consolidated Entity that is not a Borrower or a
Guarantor in an aggregate, outstanding cumulative amounts and/or an
aggregate, outstanding cumulative value equal to $20,000,000.00 or
less; provided that subsequent to December 31, 1997, investments,
loans, and advances to Consolidated Entities that are not a Borrower or
a Guarantor shall not exceed an aggregate, outstanding cumulative
amount and/or an aggregate, outstanding cumulative value equal to
$15,000,000, or less.
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Borrowers agree that if any loan, acquisition, advance or
investment is made or paid for by the transfer or exchange of Property
other than cash, the amount of such loan, acquisition, advance or
investment shall be deemed to have been made in an original principal
or capital amount equal to the lesser of (i) the book value or (ii) the
fair market value of such Property as determined by Agent.
Section 6.15 Equity Proceeds. Give to Agent five (5) Business Days
prior notice of any proposed transaction intended to raise Equity Proceeds.
Article VII. Negative Covenants.
Each of the Borrowers covenants and agrees that, during the term of
this Agreement and any extensions hereof and until the indebtedness described
herein has been paid and satisfied in full, unless Agent shall otherwise first
consent in writing, the Borrowers will not, either directly or indirectly, and
will not allow any of the Consolidated Entities to:
Section 7.01 Debts, Guarantees, and Other Obligations. Incur, create,
assume, or in any manner become or be liable with respect to any Debt; provided
that subject to all other provisions of this Article VII, the foregoing
prohibitions shall not apply to:
(a) Any indebtedness to Swing Line Lender or to Lenders as set
forth in this Credit Agreement;
(b) liabilities, direct or contingent, of any of the Borrowers
and Consolidated Entities existing on the date of this Agreement that
are referenced or reflected in the Financial Statements;
(c) endorsements of negotiable or similar instruments for
collection or deposit in the ordinary course of business;
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(d) trade payables or similar obligations (other than for
borrowed money or purchase money obligations) from time to time
incurred in the ordinary course of business not to exceed amounts
historically and customarily incurred by the Borrowers;
(e) taxes, assessments, or other governmental charges that are
not assessed or are being contested in good faith by appropriate action
promptly initiated and diligently conducted, if Borrowers shall have
made any reserve therefor required by GAAP;
(f) unsecured indebtedness (direct or contingent) to others in
excess of $15,000,000 in the aggregate; provided that subsequent to
December 31, 1997, unsecured indebtedness (direct or contingent) to
others shall not exceed $10,000,000 in the aggregate; and
(g) indebtedness owed by one of the Borrowers to another of
the Borrowers or owed by any of the Guarantor to one of the Borrowers
or to another Guarantor.
Section 7.02 Liens. Create, incur, assume, or permit to exist any Lien
on any of their respective Property (real, personal, or mixed now owned or
hereafter acquired) except, subject to all other provisions of this Article, the
foregoing restrictions shall not apply to:
(a) Liens securing the payment of any of the indebtedness
described in this Credit Agreement; and
(b) Permitted Encumbrances.
Section 7.03 Investments, Loans, and Advances Make or permit to remain
outstanding any loans or advances to or investments in any Person, except that,
subject to all other provisions of this Article, the foregoing restriction shall
not apply to:
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(a) investments in direct obligations of the United States of
America or any agency thereof;
(b) investments in direct obligations of any political
subdivisions of the United States of America or any State of the United
States of America having a senior unsecured senior debt rating from
Standard and Poor's Corporation or Xxxxx'x Investors Services, Inc. of
AA or better;
(c) investments in commercial paper of the highest credit
rating of Standard and Poor's Corporation or Xxxxx'x Investors
Services, Inc., or upon the discontinuance or either or both of such
services, any other nationally recognized rating service,
(d) investments in certificates of deposit having maturities
of less than one year, or repurchase agreements issued by commercial
banks in the United States of America having capital and surplus in
excess of $50,000,000, or commercial paper of the highest quality;
(e) investments in money market funds so long as the entire
investment therein is fully insured or so long as the fund is a fund
operated by a commercial bank of the type specified in (d) above; and
(f) investments and loans permitted by Section 6.14 herein.
Section 7.04 Distributions, and Redemptions; Issuance of Stock.
Purchase, redeem, or otherwise acquire for value any of its stock now or
hereafter outstanding, or return any capital to its stockholders, or make any
distribution of its assets to its stockholders as such.
Section 7.05 Sales and Leasebacks. Enter into any arrangement, directly
or indirectly, with any Person by which any of the Borrowers shall sell or
transfer any Property, whether now
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owned or hereafter acquired, and by which such of the Borrowers shall then or
thereafter rent or lease as lessee such Property or any part thereof or other
Property that Borrowers intend to use for substantially the same purpose or
purposes as the Property sold or transferred.
Section 7.06 Nature of Business. Suffer or permit any material change
to be made in the character of the business of any of the Borrowers or the
Consolidated Entities, as carried on as of the date hereof.
Section 7.07 Mergers, Consolidations, Etc. Merge, consolidate or
reorganize with or into, or sell, assign, lease, or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its Property (whether now owned or hereafter acquired) to, or become an
Affiliate of, any Person; provided, however, that with Agent's express prior
written consent and provided that no Event of Default and no Default Condition
has occurred, Borrowers may merge, reorganize or consolidate with any Person as
long as, immediately after and giving effect to any such merger, reorganization
or consolidation no event shall occur or would reasonably be expected to occur
which constitutes a Default Condition or an Event of Default and, in the case of
any such merger or consolidation to which Borrowers are a party, such of the
Borrowers is the surviving corporation; provided, however, this section shall
not be read to require the consent of Agent to an acquisition merger that
complies with Section 6.14(a) in which CPC is either the survivor or the parent
of a wholly-owned survivor.
Section 7.08 Proceeds of Loan. Permit the proceeds of the Advances to
be used for any purpose other than those permitted under this Agreement.
Section 7.09 Disposition of Assets. Dispose of any of the assets of any
of the Borrowers or the Consolidated Entities other than in the ordinary course
of Borrowers' or such of the Consolidated Entities' (as applicable) present
business upon terms standard in Borrowers' or such of the Consolidated Entities'
(as applicable) industry.
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Section 7.10 Limitation on Business. Engage in any business other than
the business in which the Borrowers or the Consolidated Entities are currently
engaged.
Section 7.11 Inconsistent Agreements. Enter into any agreement
containing any provision which would be violated or breached by the performance
by Borrowers of their obligations.
Section 7.12 Fiscal Year. Change their respective Fiscal Year.
Article VII A Financial Covenants.
CPC covenants and agrees that, during the term of this Agreement and
any extensions hereof and until the indebtedness described herein has been paid
and satisfied in full, unless Agent shall otherwise first consent in written,
CPC will not:
Section 7A.01 Financial Covenants.
(a) Minimum Net Worth. Permit its Consolidated Net Worth to be less
than a minimum amount equal to: (a) $70,000,000, plus (b) on an annual basis for
each Fiscal Year beginning with the 1997 Fiscal Year, a cumulative amount equal
to 50% of annual Consolidated Net Income, plus (c) 100% of the net proceeds of
any Equity Proceeds up to $35,000,000 raised by CPC subsequent to December 12,
1996, plus (d) 50% of the net proceeds of any Equity Proceeds in excess of
$35,000,000 raised by CPC subsequent to December 12, 1996.
(b) Funded Debt to EBITDA. Permit the ratio of CPC's Funded Debt
(determined on a consolidated basis) divided by CPC's EBITDA (determined on a
consolidated basis) to exceed a ratio of 4.0 to 1.0. as calculated on the Fiscal
Quarter ending March 31, 1997 and as calculated on the Fiscal Quarter ending
June 30, 1997, or permit the ratio of CPC's Funded Debt (determined on a
consolidated basis) divided by CPC's EBITDA (determined on a
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consolidated basis) to exceed a ratio of 3.0 to 1.0 as calculated on September
30, 1997 and on each succeeding Fiscal Quarter thereafter. The calculation made
as of the Fiscal Quarter ended June 30, 1997 shall be an annualized calculation
of EBITDA using only the results of the Fiscal Quarters ended March 31, 1997 and
June 30, 1997. The calculation made as of the Fiscal Quarter ended September 30,
1997 shall be an annualized calculation of EBITDA using only the results of the
Fiscal Quarters ended March 31, 1997, June 30, 1997, and September 30, 1997.
Commencing with the Fiscal Quarter ended on December 31, 1997, the calculations
made herein shall be made on a trailing four (4) Fiscal Quarter basis.
(c) EBITDA, Plus Leases to Interest Expense, Plus Leases Ratio.
Commencing on March 31, 1997 and at the conclusion of each succeeding Fiscal
Quarter, permit CPC's ratio of EBITDA, Plus Leases (determined on a consolidated
basis) to CPC's Interest Expense, Plus Leases (determined on a consolidated
basis) to be less than 1.15 to 1.0. The calculation made as of the Fiscal
Quarter ended March 31, 1997 shall be an annualized calculation of EBITDA, Plus
Leases and an annualized calculations of Interest Expense Plus Leases using only
the results of the Fiscal Quarter ended March 31, 1997. The calculation made as
of the Fiscal Quarter ended June 30, 1997 shall be an annualized calculation of
EBITDA, Plus Leases and an annualized calculation of Interest Expense Plus
Leases using only the results of the Fiscal Quarters ended March 31, 1997 and
June 30, 1997. The calculation made as of the Fiscal Quarter ended September 30,
1997 shall be an annualized calculation of EBITDA, Plus Leases and an annualized
calculation of Interest Expense Plus Leases using only the results of the Fiscal
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Quarters ended March 31, 1997, June 30, 1997, and September 30, 1997. Commencing
with the Fiscal Quarter ended on December 31, 1997, the calculations made herein
shall be made on a trailing four (4) Fiscal Quarter basis.
As used herein, "EBITDA, Plus Leases" for any period shall mean an
amount equal to the sum of: (a) EBITDA, plus (b) an amount equal to lease
payments made on CPC's consolidated capitalized and/or operating leases.
As used herein "Interest Expense, Plus Leases" for any period shall
mean an amount equal to the sum of: (a) Interest Expense, plus (b) an amount
equal to CPC's consolidated capitalized an/or operating leases.
(d) Funded Debt to Total Capitalization. Permit CPC's ratio of Funded
Debt (determined on a consolidated basis) to CPC's Total Capitalization
(determined on a consolidated basis) to exceed .70 to 1.0 at any time from the
date hereof up to but not including June 30, 1997, and permit CPC's ratio of
Funded Debt (determined on a consolidated basis) to CPC's Total Capitalization
(determined on a consolidated basis) to exceed .60 to 1.0 as calculated as of
June 30, 1997 and at any time thereafter prior to September 30, 1997, and permit
CPC's ratio of Funded Debt (determined on a consolidated basis) to CPC's ratio
of Total Capitalization (determined on a consolidated basis) to exceed .50 to
1.0 as calculated as of September 30, 1997 or at any time thereafter.
Article VIII. Events of Default.
Section 8.01 Events of Default. Any of the following events shall be
considered an Event of Default as those terms are used in this Agreement:
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(a) Principal and Interest Payments. The Borrowers fail to
make payment by 1:00 P.M. (Nashville, Tennessee time) within five (5)
days when due of any installment of principal or interest on the
Revolving Credit Notes or Swing Line Note or the Borrowers fail to pay
within five (5) days when due any payment due hereunder or under any of
the Loan Documents; or the indebtedness described herein exceeds the
Maximum Total Amount, and the Borrowers fail within five (5) days
thereafter to make any payments required herein to reduce the
indebtedness described herein to an amount equal to or less than the
Maximum Total Amount; or
(b) Representations and Warranties. Any representation or
warranty made by any of the Borrowers in any Loan Document is incorrect
in any material respect as of the date thereof; or any representation,
statement (including financial statements), certificate, or data
furnished or made by Borrowers in any Loan Document with respect to any
indebtedness is untrue in any material respect, as of the date as of
which the facts therein set forth were stated or certified; or
(c) Obligations. Any of the Borrowers fail to perform any of
their respective obligations as required by and contained in any Loan
Document; or
(d) Involuntary Bankruptcy or Receivership Proceedings. A
receiver, custodian, liquidator, or trustee of any of the Borrowers or
Guarantors, or of any of their respective property, is appointed by the
order or decree of any court or agency or supervisory authority having
jurisdiction; or any of the Borrowers or the Guarantors is adjudicated
bankrupt or insolvent; or any of the Property of any of the Borrowers
or the Guarantors is sequestered by court order or a petition is filed
against any of the
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Borrowers or the Guarantors under any state or federal bankruptcy,
reorganization, debt arrangement, insolvency, readjustment of debt,
dissolution, liquidation, or receivership law of any jurisdiction,
whether now or hereafter in effect; or
(e) Voluntary Petitions. Any of the Borrowers or any of the
Guarantors takes affirmative steps to prepare to file, or any of the
Borrowers or any of the Guarantors files a petition in voluntary
bankruptcy or to seek relief under any provision of any bankruptcy,
reorganization, debt arrangement, insolvency, readjustment of debt,
dissolution, or liquidation law of any jurisdiction, whether now or
hereafter in effect, or consents to the filing of any petition against
it under any such law; or
(f) Assignments for Benefit of Creditors, Etc. Any of the
Borrowers or any of the Guarantors makes an assignment for the benefit
of its creditors, or admits in writing its inability to pay its debts
generally as they become due, or consents to the appointment of a
receiver, trustee, or liquidator of any of the Borrowers or any of the
Guarantors or of all or any part of its respective Properties; or
(g) Discontinuance of Business, Etc. Any of the Borrowers or
any of the Guarantors discontinues its usual business, or any of the
Borrowers or any of the Guarantors becomes an Affiliate of any Person,
or any Person who is not presently an owner of a controlling interest
in such of the Borrowers or any of the Guarantors becomes a controlling
person; or
(h) Undischarged Judgments. If a final, non-appealable
judgment for the payment of money in excess of $250,000 is rendered
by any court or other governmental
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authority against any of the Borrowers or any of the Guarantors which
is not fully covered by valid collectible insurance; or
(i) Violation of Laws, Etc. Any of the Borrowers violates or
otherwise fails to comply with any law, rule, regulation, decree,
order, or judgment under the laws of the United States of America, or
of any state or jurisdiction thereof the effect of which has a material
and adverse impact on any of the Borrowers; or any of the Borrowers
fails or refuses at any and all times to remain current in its or their
financial reporting requirements pursuant to such laws, rules, and
regulations or pursuant to the rules and regulations of any exchange
upon which the shares of any of the Borrowers are traded; or
(j) Execution of Guaranty by a Consolidated Entity. Should any
Consolidated Entity not execute and deliver to Agent the guaranty and
other items required by Section 6.13 herein.
Section 8.02 Remedies. Upon the happening of any Event of Default set
forth above, with the exception of those events set forth in Section 8.01(d) and
8.01(e): (i) Agent, acting pursuant to Lenders' direction as set forth in
Article XII, may declare the entire principal amount of all indebtedness then
outstanding, including interest accrued thereon, to be immediately due and
payable without presentment, demand, protest, notice of protest, or dishonor or
other notice of default of any kind, all of which Borrowers hereby expressly
waive, (ii) at Lenders' sole discretion and option, all obligations of any of
the Lenders under this Agreement shall immediately cease and terminate unless
and until each of the Lenders shall reinstate such obligations in writing; or
(iii) Lenders may bring an action to protect or enforce
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their rights under the Loan Documents or seek to collect the indebtedness
described herein by any lawful means.
Upon the happening of any event specified in Section 8.01(d) and
Section 8.01(e) above: (i) all indebtedness described herein, including all
principal, accrued interest, and other charges or monies due in connection
therewith shall be immediately and automatically due and payable in full,
without presentment, demand, protest, or dishonor or other notice of any kind,
all of which Borrowers hereby expressly waive, (ii) all obligations of Lenders
under this Agreement shall immediately cease and terminate unless and until each
of the Lenders shall reinstate such obligations in writing; or (iii) Lenders may
bring an action to protect or enforce their rights under the Loan Documents or
seek to collect the indebtedness described herein and/or enforce the obligations
evidenced herein by any lawful means.
Section 8.03 Default Conditions. Any of the following events shall be
considered a Default Condition:
(a) Any of the Borrowers suffer a material adverse change in
its financial condition; and
(b) Should any event occur that except for the giving of
notice and/or the passage of time would be an Event of Default.
Upon the occurrence of a Default Condition or at any time thereafter
until such Default Condition no longer exists, the Borrowers agree that the
Lenders, in their sole discretion, and without notice to Borrowers, may
immediately cease making any Advances, all without liability whatsoever to
Borrowers or any other Person whomsoever, all of which is expressly waived
hereby. Borrowers release the Lenders and the Agent from any and all liability
whatsoever,
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whether direct, indirect, or consequential, and whether seen or unforeseen,
resulting from or arising out of or in connection with Lenders' determination to
cease making Advances pursuant to this Section.
Article IX. General Provisions.
Section 9.01 Notices. All communications under or in connection with
this Agreement or any of the other Loan Documents shall be in writing and shall
be mailed by first class certified mail, postage prepaid, or otherwise sent by
telex, telegram, telecopy, or other similar form of rapid transmission confirmed
by mailing (in the manner stated above) a written confirmation at substantially
the same time as such rapid transmission, or personally delivered to an officer
of the receiving party. All such communications shall be mailed, sent, or
delivered as follows:
(a) if to Borrowers, to its address shown below, or to such
other address as Borrowers may have furnished to Agent in writing:
0000 00xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Monroe J. Carell, Jr.
(b) if to Agent, to its address shown below, or to such other
address or to such individual's or department's attention as it may
have furnished Borrowers in writing:
SunTrust Bank, Nashville, N.A., Agent
000 Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
(c) if to Lenders, to the address of each of the Lenders as
shown beside the respective signature of each of the Lenders.
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Any communication so addressed and mailed by certified mail shall be deemed to
be given when so mailed.
Section 9.02 Invalidity. In the event that any one or more of the
provisions contained in any Loan Document for any reason shall be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of any Loan Document.
Section 9.03 Survival of Agreements. All representations and warranties
of Borrowers in this Agreement and all covenants and agreements in this
Agreement not fully performed before the Closing Date of this Agreement shall
survive the Closing Date.
Section 9.04 Successors and Assigns. Borrowers may not assign their
respective rights or delegate duties under this Agreement or any other Loan
Document. All covenants and agreements contained by or on behalf of Borrowers in
any Loan Document shall bind the Borrowers' successors and assigns and shall
inure to the benefit of the Agent, each Lender, the Swing Line Lender, and their
respective successors and assigns.
Section 9.05 Waivers. Pursuant to T.C.A. Section 00-00-000, no action
or course of dealing on the part of Agent, the Swing Line Lender, or any Lender,
its officers, employees, consultants, or agents, nor any failure or delay by
Agent, Swing Line Lender, or any Lender with respect to exercising any right,
power, or privilege of Agent, Swing Line Lender, or any Lender under any of the
Loan Documents shall operate as a waiver thereof, except as otherwise provided
in this Agreement. Acting pursuant to the requirements of Article XII herein,
Agent may from time to time waive any requirement hereof, including any of the
Conditions Precedent; however no waiver shall be effective unless in writing and
signed by the Agent. The execution
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by Agent of any waiver shall not obligate Agent, Swing Line Lender, or any
Lender to grant any further, similar, or other waivers.
Section 9.06 Cumulative Rights. Rights and remedies of Agent, Swing
Line Lender, or any Lender under each Loan Document shall be cumulative, and the
exercise or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
Section 9.07 Construction. This Agreement and the other Loan Documents
constitute a contract made under and shall be construed in accordance with and
governed by the laws of the State of Tennessee.
Section 9.08 Time of Essence. Time is of the essence with regard to
each and every provision of this Agreement.
Section 9.09 Costs, Expenses, and Taxes. Borrowers agree to pay on
demand all reasonable out-of-pocket costs and expenses of Agent and Swing Line
Lender (including the reasonable fees and out-of-pocket expenses of counsel for
Agent and Swing Line Lender) incurred by Agent and Swing Line Lender in
connection with the preparation, execution, delivery, administration,
enforcement, or protection of Agent's, Swing Line Lender's, or Lenders' rights
under the Loan Documents (including any suit for declaratory judgment or
interpretation of the provisions hereof).
Section 9.10 Entire Agreement; No Oral Representations Limiting
Enforcement. This Agreement represents the entire agreement between the parties
hereto except for such other agreements set forth in the Loan Documents, and any
and all oral statements heretofore made regarding the matters set forth herein
are merged herein.
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Section 9.11 Amendments. The parties hereto agree that this Agreement
may not be modified or amended except in writing signed by the parties hereto.
Section 9.12 Joint and Several Liability. Each of the Borrowers are
jointly and severally liable for all representations, warranties, covenants,
promises, and agreements of the Borrowers hereunder and under any of the Loan
Documents. All references to the Borrowers shall be to each of the Borrowers on
a joint and several basis.
Section 9.13 Distribution of Information. The Borrowers hereby
authorize the Agent, the Swing Line Lender, and each Lender, as the Agent, the
Swing Line Lender, and each Lender may elect in its sole discretion, to discuss
with and furnish to any Affiliate, to any government or self-regulatory agency
with jurisdiction over the Agent, the Swing Line Lender, and each Lender, or to
any participant or prospective participant, all financial statements, audit
reports and other information pertaining to the Borrowers, the Guarantors and/or
the Consolidated Entities whether such information was provided by Borrowers or
prepared or obtained by the Agent or third parties. Neither the Agent nor any of
its employees, officers, directors or agents make any representation or warranty
regarding any audit reports or other analyses of Borrowers which the Agent may
elect to distribute, whether such information was provided by Borrowers or
prepared or obtained by the Agent or third parties, nor shall the Agent or any
of its employees, officers, directors or agents be liable to any Person
receiving a copy of such reports or analyses for any inaccuracy or omission
contained in such reports or analyses or relating thereto.
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Article X. Jury Waiver.
Section 10.01 Jury Waiver. IF ANY ACTION OR PROCEEDING INVOLVING THIS
LOAN AGREEMENT OR ANY LOAN DOCUMENT IS COMMENCED IN ANY COURT OF COMPETENT
JURISDICTION, BORROWERS, AGENT, SWING LINE LENDER, AND EACH LENDER HEREBY WAIVE
THEIR RIGHTS TO DEMAND A JURY TRIAL.
Article XI. Hazardous Substances.
Section 11.01 Representation and Indemnity Regarding Hazardous
Substances.
(a) Borrowers have no knowledge of any spills, releases,
discharges, or disposal of Hazardous Substances that have occurred or
are presently occurring on or onto any of its Property or on any of the
Property of any Consolidated Entity; or of any spills or disposal of
Hazardous Substances that have occurred or are occurring off any of its
Property (or the property of any Consolidated Entity) as a result of
any construction on or operation and use of such Property; in each case
under this paragraph (a) so as to violate any Environmental Law in a
manner that would have a material adverse effect on the business,
Properties or financial condition of any of the Borrowers on the
Consolidated Entities or on the ability of any of the Borrowers or the
Guarantors to perform their respective obligations under this Agreement
or any of the other Loan Documents.
(b) The Borrowers represent that its Property and any current
operation concerning its Property (and the Property of any of the
Consolidated Entities) and its business operations are not in violation
of any applicable Environmental Law, and the Borrowers have no actual
knowledge or any notice from any governmental body claiming
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that such Property or such business operations or operations or uses of
the Property have or may result in any violation of any Environmental
Law or requiring or calling attention to the need for any work,
repairs, corrective actions, construction alterations or installation
on or in connection with the Property or any of the Borrowers' business
in order to comply with any Environmental Law with which Borrowers have
not complied, in each case under this paragraph (b) wherein such
violation would have a material adverse effect on the business,
Properties, or financial condition of the Borrowers and/or any of the
Consolidated Entities. If there are any such notices which would have
such effect with which Borrowers have not complied, Borrowers shall
provide Agent with copies thereof. If Borrowers receive any such notice
which would have such effect, Borrowers will immediately provide a copy
to Agent.
(c) Borrowers, jointly and severally, agree to indemnify and
hold Agent, Swing Line Lender, and Lenders harmless from and against
any and all claims, demands, damages, losses, liens, liabilities,
penalties, fines, lawsuits, and other proceedings, costs and expenses
(including, without limitation, reasonable attorneys' fees), arising
directly or indirectly from or out of, or in any way connected with (i)
the presence of any Hazardous Substances on any of its Property or the
Property of any Consolidated Entity in violation of any Environmental
Law; (ii) any violation or alleged violation of any Environmental Law
relating to Hazardous Substances on any of its Property or the Property
of any Consolidated Entity, whether attributable to events occurring
before or after Borrowers' acquisition of any of its Property or the
acquisition of such property by any Consolidated Entity; (iii) any
violation of any Environmental Law by any of the
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Borrowers or any of the Consolidated Entities resulting from the
conduct of its business, use of its Property, or otherwise; or (iv) any
inaccuracy in the certifications contained in Section 11.01(a).
Article XII. The Agent.
Section 12.01 Appointment of Agent. Each Lender hereby designates STB
as Agent to administer all matters concerning the Loans and to act as herein
specified. Each Lender hereby irrevocably authorizes, and each holder of any
Revolving Credit Note by the acceptance of a Revolving Credit Note shall be
deemed irrevocably to authorize, the Agent to take such actions on its behalf
under the provisions of this Agreement, the other Loan Documents and all other
instruments and agreements referred to herein or therein, and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through its agents or employees. The Lenders agree
that neither the Agent nor any of its directors, officers, employees or agents
shall be liable for any action taken or omitted to be taken by it or them
hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct. The Lenders agree that the Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any of the Lenders, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise be imposed upon or exist against the Agent.
Section 12.02 Authorization of Agent with Respect to the Loan
Documents. (a) Each Lender hereby authorizes the Agent to enter into each of the
Loan Documents and to take all
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action contemplated thereby, all in its capacity as Agent for the ratable
benefit of the Lenders. All rights and remedies under the Loan Documents may be
exercised by the Agent for the benefit of the Agent and the Lenders upon the
terms thereof. The Lenders further agree that the Agent may assign its rights
and obligations under any of the Loan Documents to any Affiliate of the Agent,
if necessary or appropriate under applicable law, which assignee in each such
case shall (subject to compliance with any requirements of applicable law
governing the assignment of such Loan Documents) be entitled to all the rights
of the Agent under and with respect to the applicable Loan Document.
(b) The Agent shall administer the Loans described herein and the Loan
Documents on behalf of and for the benefit of the Lenders in all respects as if
the Agent were the sole Lender under the Loan Documents, except that:
(i) The Agent shall administer the Loans and the Loan
Documents with a degree of care at least equal to that customarily
employed by the Agent in the administration of similar credit
facilities for its own account.
(ii) The Agent shall not, without the consent of the Majority
Lenders, take any of the following actions:
(A) agree to a waiver of any material requirements,
covenants, or obligations of any of the Borrowers or
Guarantors contained herein;
(B) agree to any amendment to or modification of any
of the terms of any of the Loan Documents;
(C) waive any Event of Default or Default Condition
as set forth in the Credit Agreement;
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(D) accelerate the indebtedness described in the
Credit Agreement following an Event of Default; or
(E) initiate litigation or pursue other remedies to
enforce the obligations contained in any Loan Document or to
collect the indebtedness described herein.
(iii) The Agent shall not, without the consent of all of the
Lenders, take any of the following actions:
(A) extend the maturity of any payment of principal
of or interest on the indebtedness described herein;
(B) reduce any fees paid to or for the benefit of
Lenders under the Credit Agreement;
(C) reduce the rate of interest charged on the
indebtedness described herein;
(D) release any Guaranty of any Material Subsidiary;
(E) waive, amend, modify or change the Conditions
Precedent;
(F) postpone any date fixed for the payment in
respect of principal of, or interest on the indebtedness
described herein, or any fees hereunder;
(G) modify the definition of Majority Lenders; or
(H) modify this Section 12.02(b)(iii).
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(c) The Agent, upon its receipt of actual notice thereof,
shall notify the Lenders of: (i) each proposed action that would
require the consent of the Lenders as set forth herein, or (ii) any
action proposed to be taken by the Agent in the administration of the
Loans and Loan Documents not in the ordinary course of business;
provided that any failure of the Agent to give the Lenders any such
notice shall not alone be the basis for any liability of the Agent to
the Lenders except for the Agent's gross negligence or willful
misconduct.
(d) The Lenders agree that the Agent shall incur no liability
under or in respect of this Agreement with respect to anything which it
may do or refrain from doing in the reasonable exercise of its judgment
or which may seem to it to be necessary or desirable in the
circumstances, except for its gross negligence or willful misconduct.
Agent shall incur no liability to any of the Lenders for giving consent
on behalf of the Lenders when under the terms of this Agreement consent
may not be unreasonably withheld.
(e) The Agent shall not be liable to the Lenders or to any
Lender in acting or refraining from acting under this Agreement or any
other Loan Document in accordance with the instructions of the Majority
Lenders or all of the Lenders, where expressly required by this
Agreement, and any action taken or failure to act pursuant to such
instructions shall be binding on all Lenders. In each circumstance
where any consent of or direction from the Majority Lenders or all of
the Lenders is required or requested by Agent, the Agent shall send to
the Lenders a notice setting forth a description in reasonable detail
of the matter as to which consent or direction is requested and the
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Agent's proposed course of action with respect thereto. In the event
the Agent shall not have received a response from any Lender within
five (5) Business Days after Agent sends such notice, such Lender shall
be deemed to have agreed to the course of action proposed by the Agent.
Section 12.03 Agent's Duties Limited; No Fiduciary Duty. The Lenders
agree that the Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents. The Lenders
agree that none of the Agent nor any of its respective officers, directors,
employees or agents shall be liable for any action taken or omitted by it as
such hereunder or in connection herewith, unless caused by its or their gross
negligence or willful misconduct. The Agent shall not have by reason of this
Agreement a fiduciary relationship to or in respect of any Lender, and nothing
in this Agreement, express or implied, is intended to or shall be so construed
as to impose upon the Agent any obligations in respect of this Agreement or the
other Loan Documents except as expressly set forth herein.
SECTION 12.04 NO RELIANCE ON THE AGENT. (A) EACH LENDER REPRESENTS AND
WARRANTS TO THE AGENT AND THE OTHER LENDERS THAT INDEPENDENTLY AND WITHOUT
RELIANCE UPON THE AGENT, EACH LENDER, TO THE EXTENT IT DEEMS APPROPRIATE, HAS
MADE AND SHALL CONTINUE TO MAKE (I) ITS OWN INDEPENDENT INVESTIGATION OF THE
FINANCIAL CONDITION AND AFFAIRS OF THE BORROWERS, THE GUARANTORS, AND THE
CONSOLIDATED ENTITIES IN CONNECTION WITH THE TAKING OR NOT TAKING OF ANY ACTION
IN CONNECTION HEREWITH, AND (II) ITS OWN APPRAISAL OF THE CREDIT WORTHINESS OF
THE BORROWERS, THE GUARANTORS, AND THE CONSOLIDATED
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ENTITIES, AND, EACH LENDER FURTHER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, THE AGENT SHALL HAVE NO DUTY OR RESPONSIBILITY, EITHER INITIALLY
OR ON A CONTINUING BASIS, TO PROVIDE ANY LENDER WITH ANY CREDIT OR OTHER
INFORMATION WITH RESPECT THERETO, WHETHER COMING INTO ITS POSSESSION BEFORE THE
MAKING OF THE LOANS OR AT ANY TIME OR TIMES THEREAFTER. AS LONG AS ANY OF THE
LOANS ARE OUTSTANDING AND/OR ANY AMOUNT IS AVAILABLE TO BE REQUESTED OR BORROWED
HEREUNDER, OR THIS AGREEMENT AND THE LOAN DOCUMENTS HAVE NOT BEEN CANCELLED AND
TERMINATED, EACH LENDER SHALL CONTINUE TO MAKE ITS OWN INDEPENDENT EVALUATION OF
THE FINANCIAL CONDITION AND AFFAIRS OF THE BORROWERS, THE GUARANTORS, AND THE
CONSOLIDATED ENTITIES.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectability, priority or sufficiency of this Agreement, the Revolving Credit
Notes, the Swing Line Note, the Guarantees, the other Loan Documents, or any
other documents contemplated hereby or thereby, or the financial condition of
the Borrowers, the Guarantors, or any of the Consolidated Entities, or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, the Revolving
Credit Notes, the Swing Line Note, the Guarantees, the other Loan Documents or
the other documents contemplated hereby or thereby, or the financial condition
of the Borrowers,
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the Guarantors, or any of the Consolidated Entities or the existence or possible
existence of any Default Condition or Event of Default.
Section 12.05 Certain Rights of Agent. The Lenders agree that if the
Agent shall request instructions from the Majority Lenders (or all of the
Lenders where unanimity is expressly required under the terms of this Agreement)
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Agent shall be entitled to refrain from such
act or taking such act, unless and until the Agent shall have received
instructions from the Majority Lenders (or all of the Lenders where unanimity is
expressly required under the terms of this Agreement); and the Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the Agent
as a result of the Agent acting or refraining from acting hereunder in
accordance with the instructions of the Majority Lenders (or, with regard to
acts for which the consent of all of the Lenders is expressly required under the
terms of this Agreement, in accordance with the instructions of all of the
Lenders).
Section 12.06 Reliance by Agent. The Lenders agree that the Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other documentary,
teletransmission or telephone message reasonably believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person. The
Lenders agree that the Agent may consult with legal counsel (including counsel
for any Lender), independent public accountants and other experts selected by it
and shall not be liable for any action taken or
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omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 12.07 Indemnification of Agent. To the extent the Agent is not
reimbursed and indemnified by the Borrowers, each Lender will reimburse and
indemnify the Agent, ratably according to their respective Pro Rata Share, for,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including fees of
experts, consultants and counsel and disbursements) or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by or asserted against the
Agent in performing its duties hereunder, in any way relating to or arising out
of this Agreement or the other Loan Documents; provided that no Lender shall be
liable to the Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. The
obligations and indemnifications arising under this Section 12.07 shall survive
termination of this Agreement, repayment of the Loans and indebtedness arising
in connection with the Letters of Credit and expiration of the Letters of
Credit.
Section 12.08 The Agent in its Individual Capacity. With respect to its
obligation to lend under this Agreement, the Loan made by it and the Revolving
Credit Note issued to it, the Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Revolving Credit Note and may
exercise the same as though it were not performing the duties of Agent specified
herein; and the terms "Lenders," "Majority Lenders," "holders of Revolving
Credit Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the Agent in its individual capacity. The Agent also may
exercise the rights and remedies of the
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Swing Line Lender. The Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking, trust, financial advisory
or other business with the Borrowers, the Guarantors, the Consolidated Entities,
or any Affiliate of the Borrowers as if it were not performing the duties
specified herein as Agent, and may accept fees and other consideration from the
Borrowers for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
Section 12.09 Holders of Notes. The Agent and the Borrowers may deem
and treat the payee of any Revolving Credit Note as the owner thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent and the Borrowers. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Revolving Credit Note
shall be conclusive and binding on any subsequent holder, transferee or assignee
of such Revolving Credit Note.
Section 12.10 Successor Agent. (a) The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with cause by the Majority Lenders; provided, however, the
Agent may not resign or be removed until (i) a successor Agent has been
appointed and shall have accepted such appointment, (ii) the successor Agent has
assumed all responsibility for issuance of the Letters of Credit and the
successor Agent has assumed in the place and stead of the Agent all existing
liability under outstanding Letters of Credit, and (iii) the successor Agent has
assumed in the place and stead of the Agent all liability and responsibility of
the Swing Line Lender, including the purchase by the successor Agent from the
Agent of the Swing Line Lender's position in the Swing Line Note. The
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transactions described in the immediately preceding sentence shall be
accomplished pursuant to written agreements reasonably satisfactory to the Agent
and the successor Agent. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Majority Lenders, and shall have accepted
such appointment, within thirty (30) days after the retiring Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a bank that maintains an office in the United States, or a
commercial bank organized under the laws of the United States of America or any
State thereof, or any Affiliate of such bank, having a combined capital and
surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article XII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
Section 12.11 Notice of Default or Event of Default. In the event that
the Agent or any Lender shall acquire actual knowledge, or shall have been
notified, of any Default Condition or Event of Default (other than through a
notice by one party hereto to all other parties), the Agent or such Lender shall
promptly notify the Agent, and the Agent shall take such action and assert such
rights under this Agreement as the Majority Lenders shall request in writing,
and the Agent shall not be subject to any liability by reason of its acting
pursuant to any such request. If,
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following notification by Agent to Lenders, the Majority Lenders (or all of the
Lenders if required hereunder) shall fail to request the Agent to take action or
to assert rights under this Agreement in respect of any Default Condition or
Event of Default within five (5) Business Days after their receipt of the notice
of any Default Condition or Event of Default from the Agent or any Lender, or
shall request inconsistent action with respect to such Default Condition or
Event of Default, the Agent may, but shall not be required to, take such action
and assert such rights (other than rights under Article VIII hereof) as it deems
in its discretion to be advisable for the protection of the Lenders.
Section 12.12 Benefit of Agreement.
(a) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender, provided that no such action shall increase the cost of the Loans to the
Borrowers.
(b) Each Lender may assign a portion of its interests, rights and
obligations under this Agreement, including all or a portion of any of its
Revolving Credit Loan Commitment (including without limitation its commitment to
participate in Letters of Credit) to any Eligible Assignee; provided, however,
that (i) the amount of the Revolving Credit Loan Commitment of the assigning
Lender subject to each assignment (determined as of the date the assignment and
acceptance with respect to such assignment is delivered to the Agent) shall not
be less than an amount equal to $5,000,000 or greater integral multiples
thereof, and (ii) the parties to each such assignment shall execute and deliver
to the Agent and the Borrowers an Assignment and Acceptance, together with a
Revolving Credit Note or Revolving Credit Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a processing and
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recordation fee of $3,000. Borrowers shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any Lender
or the Agent in connection with such assignment. 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, the assignee
thereunder shall be a party hereto and to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement. Notwithstanding the foregoing, the assigning Lender must
retain after the consummation of such Assignment and Acceptance, a minimum
aggregate amount of Revolving Credit Loan Commitment of $10,000,000; provided,
however, no such minimum amount shall be required with respect to any such
assignment made at any time there exists an Event of Default hereunder. Within
five (5) Business Days after receipt of the notice and the Assignment and
Acceptance, Borrowers, at their own expense, shall execute and deliver to the
Agent, in exchange for the surrendered Revolving Credit Note or Revolving Credit
Notes, a new Revolving Credit Note or Revolving Credit Notes to the order of the
Eligible Assignee in a principal amount equal to the applicable Revolving Credit
Loan Commitment assumed by it pursuant to such Assignment and Acceptance, as
well as a and new Revolving Credit Note or Revolving Credit Notes to the
assigning Lender in the amount of its retained Revolving Credit Loan Commitment.
Such new Revolving Credit Notes to the Eligible Assignee and to the assigning
Lender shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Credit Note or Revolving Credit
Notes, shall be dated the date of the surrendered Revolving Credit Note or
Revolving Credit Notes that they replace, and shall otherwise be in
substantially the form attached hereto as Exhibit C.
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(c) No assignment of all or any portion of this Agreement by any Lender
shall be permitted without compliance with the provisions of Section 2.12(b)
hereof, or if such assignment would violate any applicable securities law. In
connection with its execution and delivery hereof each Lender represents that it
is acquiring its interest herein for its own account for investment purposes and
not with a view to further distribution thereof, and shall require any proposed
assignee to furnish similar representations to the Agent and the Borrowers.
(d) Each Lender may, without the consent of Borrowers or the Agent but
subject to the provisions of Section 2.07, sell participations in its respective
Revolving Credit Loan Commitment and Letter of Credit commitments to such
Lender's Affiliate(s), but sales of participations to Persons other than such
Lender's Affiliates shall be made only with the prior consent of the Agent and
in all events subject to said section. Provided, however, that (i) no Lender may
sell a participation in its aggregate Revolving Credit Loan Commitment and
Letter of Credit commitments (after giving effect to any permitted assignment
hereof) unless it retains an aggregate exposure of at least $10,000,000 (except
that no such limitation shall be applicable to any such participation sold at
any time there exists an Event of Default hereunder), (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and (v) Borrowers and the Agent and other Lenders shall
continue to deal solely and directly with each Lender in connection with such
Lender's rights and obligations as provided in this Agreement and the other Loan
Documents. Each Lender shall promptly notify in writing the Agent of any sale of
a participation hereunder.
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(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this Section
12.12, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrowers, Guarantors, or the
Consolidated Entities furnished to such Lender by or on behalf of Borrowers,
Guarantors, or any of the Consolidated Entities. With respect to any disclosure
of confidential, non-public, proprietary information, such proposed assignee or
participant shall agree to use the information only for the purpose of making
any necessary credit judgments with respect to this credit facility and not to
use the information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed participant
or assignee shall agree in writing not to disclose any of such information
except (i) to directors, employees, auditors or counsel to whom it is necessary
to show such information, each of whom shall be informed of the confidential
nature of the information and agree to maintain the confidentiality thereof as
described herein, (ii) in any statement or testimony pursuant to a subpoena or
order by any court, governmental body or other agency asserting jurisdiction
over such entity, or as otherwise required by law (provided prior notice is
given to Borrowers and the Agent unless otherwise prohibited by the subpoena,
order or law), and (iii) upon the request or demand of any regulatory agency or
authority with proper jurisdiction. The proposed participant or assignee, and
such representatives, shall further agree to return to Borrowers all documents
or other written material and copies thereof received from any Lender, the Agent
or Borrowers relating to such confidential information.
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(f) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Revolving Credit Notes issued to it to a Federal
Reserve Bank; provided that no such assignment shall release the assigning
Lender from any of its obligations hereunder.
ENTERED INTO the date first above written.
BORROWERS:
CENTRAL PARKING CORPORATION
By:
--------------------------------
Title:
-----------------------------
CENTRAL PARKING SYSTEM, INC.
By:
--------------------------------
Title:
-----------------------------
CENTRAL PARKING SYSTEM REALTY, INC.
By:
--------------------------------
Title:
-----------------------------
AGENT:
SUNTRUST BANK, NASHVILLE, N.A., Agent
By:
--------------------------------
Title:
-----------------------------
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LENDERS:
SUNTRUST BANK, NASHVILLE, N.A.
By:
--------------------------------
Title:
-----------------------------
Address: 000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Pro Rata Share: 100%
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