EXHIBIT 10.1
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CREDIT AGREEMENT
Dated as of February 11, 1999
among
PSS WORLD MEDICAL, INC.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK, N.A.,
as Agent and Issuing Lender
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TABLE OF CONTENTS
SECTION 1
DEFINITIONS.................................................................. 1
1.1 Definitions ....................................................... 1
1.2 Computation of Time Periods ....................................... 28
1.3 Accounting Terms .................................................. 28
1.4 Terms Generally ................................................... 28
SECTION 2
CREDIT FACILITIES ........................................................... 29
2.1 Revolving Loans ................................................... 29
2.2 Letter of Credit Subfacility ...................................... 30
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES .............................. 36
3.1 Default Rate ...................................................... 36
3.2 Extension and Conversion .......................................... 36
3.3 Prepayments ....................................................... 37
3.4 Termination and Reduction of Commitments .......................... 39
3.5 Fees .............................................................. 39
3.6 Increased Cost and Reduced Return ................................. 40
3.7 Limitation on Types of Loans ...................................... 42
3.8 Illegality ........................................................ 42
3.9 Treatment of Affected Loans ....................................... 42
3.10 Taxes ............................................................. 43
3.11 Compensation ...................................................... 44
3.12 Pro Rata Treatment ................................................ 45
3.13 Sharing of Payments ............................................... 45
3.14 Payments, Computations, Etc ....................................... 46
3.15 Evidence of Debt .................................................. 48
3.16 Assignment of Commitments Under Certain Circumstances ............. 48
SECTION 4
CONDITIONS .................................................................. 49
4.1 Closing Conditions ................................................ 49
4.2 Conditions to all Extensions of Credit ............................ 54
SECTION 5
REPRESENTATIONS AND WARRANTIES .............................................. 55
5.1 Financial Condition ............................................... 55
5.2 Organization and Good Standing .................................... 56
5.3 Power; Authorization; Enforceable Obligations ..................... 56
5.4 No Conflicts ...................................................... 57
5.5 No Default ........................................................ 57
5.6 Assets ............................................................ 57
5.7 Indebtedness ...................................................... 57
5.8 Litigation ........................................................ 57
5.9 Taxes ............................................................. 58
5.10 Compliance with Law ............................................... 58
5.11 ERISA ............................................................. 58
5.12 Subsidiaries ...................................................... 60
5.13 Governmental Regulations, Etc ..................................... 60
5.14 Purpose of Loans and Letters of Credit ............................ 61
5.15 Environmental Matters ............................................. 61
5.16 Intellectual Property ............................................. 62
5.17 Solvency .......................................................... 63
5.18 Investments ....................................................... 63
5.19 Location of Collateral ............................................ 63
5.20 Disclosure ........................................................ 64
5.21 No Burdensome Restrictions; Material Agreements ................... 64
5.22 Brokers' Fees ..................................................... 65
5.23 Labor Matters ..................................................... 65
5.24 Nature of Business ................................................ 65
5.25 Security Documents ................................................ 65
5.26 Transactions with Affiliates ...................................... 66
5.27 Ownership ......................................................... 66
5.28 Insurance ......................................................... 66
5.29 Year 2000 Compliance .............................................. 66
5.30 Euro. ............................................................. 67
SECTION 6
AFFIRMATIVE COVENANTS ....................................................... 67
6.1 Information Covenants ............................................. 67
6.2 Preservation of Existence and Franchises. ......................... 71
6.3 Books and Records ................................................. 71
6.4 Compliance with Law ............................................... 71
6.5 Payment of Taxes and Other Indebtedness ........................... 71
6.6 Insurance; Certain Proceeds ....................................... 71
6.7 Maintenance of Property ........................................... 73
6.8 Performance of Obligations ........................................ 73
6.9 Use of Proceeds ................................................... 73
6.10 Audits/Inspections ................................................ 73
6.11 Additional Credit Parties ......................................... 74
6.12 Pledged Assets .................................................... 74
6.13 Year 2000 Compliance .............................................. 76
SECTION 7
NEGATIVE COVENANTS .......................................................... 76
7.1 Indebtedness ...................................................... 76
7.2 Liens ............................................................. 78
7.3 Nature of Business ................................................ 78
ii
7.4 Consolidation, Merger, Dissolution, etc .......................... 78
7.5 Asset Dispositions ............................................... 79
7.6 Investments; Acquisitions ........................................ 81
7.7 Restricted Payments .............................................. 81
7.8 Prepayments of Subordinated Indebtedness, etc .................... 81
7.9 Transactions with Affiliates ..................................... 81
7.10 Fiscal Year; Organizational Documents ............................ 82
7.11 Limitation on Restricted Actions ................................. 82
7.12 Ownership of Subsidiaries; Limitations on the Borrower ........... 82
7.13 Sale Leasebacks .................................................. 82
7.14 Capital Expenditures ............................................. 83
7.15 No Further Negative Pledges ...................................... 83
7.16 Limitation on Foreign Operations and Subsidiaries ................ 83
7.17 Impairment of Security Interests ................................. 83
7.18 Sales of Receivables ............................................. 83
7.19 Financial Covenants ............................................. 83
7.20 Deposit Account Balances ......................................... 84
SECTION 8
EVENTS OF DEFAULT .......................................................... 84
8.1 Events of Default ................................................ 84
8.2 Acceleration; Remedies ........................................... 88
8.3 Equitable Remedies. .............................................. 88
SECTION 9
AGENCY PROVISIONS .......................................................... 89
9.1 Appointment, Powers and Immunities ............................... 89
9.2 Reliance by Agent ................................................ 90
9.3 Defaults ......................................................... 90
9.4 Rights as Lender ................................................. 90
9.5 Indemnification .................................................. 91
9.6 Non-Reliance on Agent and Other Lenders .......................... 91
9.7 Resignation of Agent ............................................. 91
SECTION 10
MISCELLANEOUS .............................................................. 92
10.1 Notices .......................................................... 92
10.2 Right of Set-Off ................................................. 93
10.3 Benefit of Agreement ............................................. 93
10.4 No Waiver; Remedies Cumulative ................................... 95
10.5 Expenses; Indemnification ........................................ 96
10.6 Amendments, Waivers and Consents ................................. 97
10.7 Counterparts ..................................................... 99
10.8 Headings ......................................................... 99
10.9 Survival ......................................................... 99
10.10 Governing Law; Submission to Jurisdiction; Venue ................. 99
iii
10.11 Severability ..................................................... 101
10.12 Entirety ......................................................... 101
10.13 Binding Effect; Termination ...................................... 102
10.14 Confidentiality .................................................. 102
10.15 Source of Funds .................................................. 102
10.16 Conflict ......................................................... 103
iv
SCHEDULES
Schedule 1.1A Investments
Schedule 1.1B Liens
Schedule 1.1C Lenders
Schedule 5.1 Liabilities
Schedule 5.3 Required Consents, Authorizations, Notices and Filings
Schedule 5.8 Litigation
Schedule 5.10 Compliance with Law
Schedule 5.11 ERISA
Schedule 5.12 Subsidiaries
Schedule 5.15 Environmental Matters
Schedule 5.16 Intellectual Property
Schedule 5.19 Properties
Schedule 5.21 Material Contracts
Schedule 5.23 Labor Matters
Schedule 5.25 Recordings
Schedule 5.26 Transactions with Affiliates
Schedule 5.27 Ownership
Schedule 5.28 Insurance
Schedule 7.1 Indebtedness
Schedule 7.9 Transactions with Affiliates
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Depository Bank Agreement
Exhibit C Form of Indemnity, Subrogation and Contribution Agreement
Exhibit D Form of Intercompany Note
Exhibit E Form of Joinder Agreement
Exhibit F Form of Notice of Borrowing
Exhibit G Form of Notice of Extension/Conversion
Exhibit H Form of Perfection Certificate
Exhibit I Form of Security Agreement
Exhibit J Form of Subsidiaries Guarantee Agreement
Exhibit K Form of Revolving Note
Exhibit L-1 Form of Legal Opinion (General External Counsel)
Exhibit L-2 Form of Legal Opinion (Local Corporate Counsel)
Exhibit L-3 Form of Legal Opinion (Local Collateral Counsel)
Exhibit L-4 Form of Legal Opinion (Foreign Counsel)
Exhibit M Form of Mortgage Instrument
Exhibit N Form of Officer's Compliance Certificate
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CREDIT AGREEMENT dated as of February ___, 1999 (as amended, modified,
restated or supplemented from time to time, this "Agreement"), among PSS WORLD
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MEDICAL, INC., a Florida corporation (the "Borrower"), the Lenders (as defined
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herein) and NATIONSBANK, N.A., as Agent for the Lenders (in such capacity, the
"Agent") and Issuing Lender.
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The Borrower has requested that the Lenders provide credit facilities to
the Borrower in the aggregate principal amount of up to $140,000,000 for the
purposes hereinafter set forth. The Lenders have agreed to make the requested
credit facilities available to the Borrower on the terms and subject to the
conditions hereinafter set forth. Accordingly, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
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have the meanings specified below unless the context otherwise requires:
"Additional Subsidiary Guarantor" shall mean each Person that becomes a
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Subsidiary Guarantor after the Closing Date by execution of a Joinder Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
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Percentage.
"Adjusted Eurodollar Rate" shall mean the Eurodollar Rate plus the
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Applicable Percentage.
"Affected Loans" shall have the meaning assigned to such term in Section
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3.9.
"Affected Type" shall have the meaning assigned to such term in Section
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3.9.
"Affiliate" shall mean (a) with respect to any Person (including the
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Consolidated Parties), any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such Person and
(b) with respect to any of the Consolidated Parties, any Person directly or
indirectly owning or holding five percent (5%) or more of the equity interest in
such Person. For purposes of this definition, "control" when used with respect
to any Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agency Services Address" shall mean NationsBank, N.A., NC1-001-15-04, 101
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Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Agency Services, or
such other address as may be identified by written notice from the Agent to the
Borrower.
"Agent" shall have the meaning assigned to such term in the heading hereof,
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together
with its successors.
"Agent's Fee Letter" shall mean the letter agreement, dated as of November
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24, 1998, between the Agent, NMS and the Borrower, as amended, modified,
restated or supplemented from time to time.
"Applicable Lending Office" shall mean, for each Lender and for each Type
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of Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or an Affiliate of such Lender) as such Lender may from
time to time specify to the Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Percentage" shall mean, for purposes of calculating the
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applicable interest rate for any day for any Revolving Loan, the applicable rate
of the Commitment Fee for any day for purposes of Section 3.5(b), the applicable
rate of the Letter of Credit Fee for any day for purposes of Section 3.5(c)(i),
the appropriate applicable percentage set forth below corresponding to the
Leverage Ratio as of the most recent Calculation Date:
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REVOLVING LOANS AND FEES
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Applicable Applicable Applicable
Percentage Applicable Percentage Percentage
For Percentage For Letter For
Pricing Eurodollar For Base of Credit Commitment
Level Leverage Ratio Loans Rate Loans Fee Fees
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I greater than or equal
to 3.0 to 1.0 1.625% .625% 1.625% .45%
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II less than 3.0 to 1.0 1.50% .50% 1.50% 40%
but greater than or
equal to 2.5 to 1.0
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III less than 2.5 to 1.0 1.375% .375% 1.375% .35%
but greater than or
equal to 2.0 to 1.0
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IV less than 2.0 to 1.0 1.25% .25% 1.25% .30%
but greater than or
equal to 1.5 to 1.0
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V less than 1.5 to 1.0 1.125% 0% 1.125% .25%
but greater than or
equal to 1.0 to 1.0
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VI less than 1.0 to 1.0 1.00% 0% 1.00% .20%
=========================================================================================================
Each Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five Business Days after the date by which the
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Borrower is required to provide the officer's certificate in accordance with the
provisions of Section 6.1(c) for the most recently ended fiscal quarter or year
of the Borrower; provided, however, that (a) each initial Applicable Percentage
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for the first fiscal quarter immediately succeeding the Closing Date shall be as
follows: Applicable Percentage for Eurodollar Loans - 1.125%, Applicable
Alternate Base Rate Margin - .0%, Applicable Percentage for Letter of Credit Fee
- 1.125%, and
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Applicable Percentage for Commitment Fees - .25% and shall remain at such
levels until the first Calculation Date occurring after the end of the first
full fiscal quarter of the Borrower subsequent to the Closing Date and,
thereafter, each Applicable Percentage shall be based on the Pricing Level (as
shown above) corresponding to the Leverage Ratio as of the last day of the most
recently ended fiscal quarter or year of the Borrower preceding the applicable
Calculation Date, but in no event during the second fiscal quarter immediately
succeeding the Closing Date shall the Applicable Percentage relating to Base
Rate Loans, Eurodollar Loans, Letter of Credit Fees or Commitment Fees be less
than the percentages established for such interest rates or fees, as the case
may be, for the first fiscal quarter immediately succeeding the Closing Date,
(b) if the Borrower fails to provide the officer's certificate to the Agency
Services Address as required by Section 6.1(c) covering financial statements for
the most recently ended fiscal quarter or year of the Borrower preceding the
applicable Calculation Date, each Applicable Percentage from such Calculation
Date shall be based on Pricing Level I (as shown above) until such time as an
appropriate officer's certificate is provided, whereupon each Applicable
Percentage shall be based on the Pricing Level (as shown above) corresponding to
the Leverage Ratio as of the last day of the most recently ended fiscal quarter
or year of the Borrower preceding such Calculation Date, and (c) if and for so
long as any Default or Event of Default shall have occurred and be continuing,
each Applicable Percentage shall be based on Pricing Level I (as shown above).
Each Applicable Percentage shall be effective from one Calculation Date until
the next Calculation Date. Any adjustment in the Applicable Percentages shall
be applicable to all Loans then existing or subsequently made or issued.
"Asset Disposition" shall mean the disposition of any or all of the assets
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of any Consolidated Party (including the Capital Stock of a Subsidiary), whether
by sale, lease (including any Sale and Leaseback Transaction), transfer,
Casualty, Condemnation or otherwise; provided that the foregoing definition
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shall not be deemed to imply that any such Asset Disposition is permitted under
this Agreement. The term "Asset Disposition" shall not include any Equity
Issuance.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
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into by a Lender and its assignee in the form of Exhibit A or such other similar
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form as shall be approved by the Agent.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the United
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States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" shall mean, with respect to any Person, the occurrence
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of any of the following with respect to such Person: (a) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its Property
or ordering the winding up or liquidation of its affairs; or (b) there shall be
commenced against such Person an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a
3
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (c) such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or make any general assignment for the benefit of creditors; or (d)
such Person shall be unable to, or shall admit in writing its inability to, pay
its debts generally as they become due.
"Base Rate" shall mean, for any day, the rate per annum equal to the higher
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of (a) the Federal Funds Rate for such day plus one-half of one percent (0.50%)
and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Federal Funds Rate or the Prime Rate shall be effective on the
effective date of such change in the Federal Funds Rate or the Prime Rate.
"Base Rate Loan" shall mean any Loan bearing interest at a rate determined
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by reference to the Base Rate.
"Borrower" shall mean the Person identified as such in the heading hereof,
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together with its permitted successors and assigns.
"Business Day" shall mean a day (other than a Saturday, Sunday or other day
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on which commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close), except that, when used in connection
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with a Eurodollar Loan, such day shall also be a day on which dealings between
banks are carried on in U.S. dollar deposits in London, England.
"Businesses" shall have the meaning assigned to such term in Section 5.15.
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"Calculation Date" shall have the meaning assigned to such term in the
----------------
definition of "Applicable Percentage" set forth in this Section 1.1.
"Capital Lease" shall mean, as applied to any Person, any lease of any
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Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of such Person.
"Capital Stock" shall mean (a) in the case of a corporation, capital stock,
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(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests, (e) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person and (f) all rights to purchase, warrants, options
and other securities exercisable for,
4
exchangeable for or convertible into any of the foregoing.
"Cash Equivalents" shall mean (a) securities issued or directly and fully
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guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
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States of America is pledged in support thereof) having maturities of not more
than twelve (12) months from the date of acquisition, (b) U.S. dollar
denominated certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank having one of the two highest ratings from both
Xxxxx'x and S&P, in each case with maturities of not more than 1 year from the
date of acquisition, (c) commercial paper and variable or fixed rate notes
having one of the two highest ratings from both Xxxxx'x and S&P and maturing
within one year of the date of acquisition, (d) repurchase agreements with a
bank or trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of $250,000,000 for direct
obligations issued by or fully guaranteed by the United States of America in
which the Borrower or any Subsidiary shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof or which the holder has the right to require the issuer to
repurchase at a price greater than or equal to the principal amount thereof
within one year from the date of acquisition and, at the time of acquisition,
having one of the two highest ratings obtainable from both S&P and Xxxxx'x and
(f) Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, which are administered by reputable financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(e).
"Casualty" shall mean any casualty or other loss, damage or destruction.
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"Change of Control" shall mean the occurrence of one or more of the
-----------------
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower and its Subsidiaries taken as a whole to any Person
or group of related Persons for purposes of Section 13(d) of the Exchange Act (a
"Group") together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Agreement; (ii) the approval by the
holders of Capital Stock of the Borrower of any plan or proposal for the
liquidation or dissolution of the Borrower (whether or not otherwise in
compliance with the provisions of this Agreement; (iii) the acquisition in one
or more transactions, by any Person or Group of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of either more than 30% (or in the
case of any Person or Group that beneficially owns 10% or more of the aggregate
ordinary voting power as of the date hereof, 35%) of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of the
Borrower or more than 40% of the aggregate issued and outstanding common stock
of the Borrower, par value $0.01 per share; or (iv) the replacement of a
majority of the Board of Directors of the Borrower over a two-year period from
the directors who constituted the Board of Directors of the Borrower at the
5
beginning of such period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of the Borrower then still
in office who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors was
previously so approved.
"Closing Date" shall mean the date on which this Agreement is executed and
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delivered by the parties hereto and the first Loans are made in accordance with
Section 4.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
----
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"Collateral" shall mean all the collateral which is identified in, and at
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any time is purported to be covered by, the Collateral Documents.
"Collateral Documents" shall mean the Security Agreement, the Perfection
--------------------
Certificate, the Depository Bank Agreements, the Mortgage Instruments and such
other documents executed and delivered in connection with the attachment and
perfection of the Agent's security interests and liens arising thereunder,
including UCC financing statements, patent and trademark filings and, with
respect to property acquired after the Closing Date, such other additional
security documents as the Agent shall reasonably request.
"Commitment" shall mean (a) with respect to each Lender, the Revolving
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Commitment of such Lender as and to the extent applicable and (b) with respect
to the Issuing Lender, the LOC Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
--------------
3.5(b).
"Commitment Fee Calculation Period" shall have the meaning assigned to such
---------------------------------
term in Section 3.5(b).
"Company Properties" shall have the meaning assigned to such term in
------------------
Section 5.15.
"Condemnation" shall mean any taking of Property, or any part thereof or
------------
interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other manner.
"Condemnation Award" shall mean all proceeds of any Condemnation or
------------------
transfer in lieu thereof.
"Consolidated Cash Dividends" shall mean, for any period, the aggregate
---------------------------
amount of all dividends or distributions paid in cash in respect of Capital
Stock by the Borrower during such period.
"Consolidated Cash Interest Expense" shall mean, for any period, the gross
----------------------------------
amount of
6
interest expense of the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP, during such period, including
(a) the portion of any payments or accruals with respect to Capital Leases that
are allocable to interest expense in accordance with GAAP and (b) all fees,
charges, discounts and other costs paid in respect of Indebtedness during such
period; provided that (i) all non-cash interest expense shall be excluded and
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(ii) any cash interest payments on Indebtedness of another Person that is
guaranteed by the Borrower or any of its Consolidated Subsidiaries or secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) a Lien on, or payable out of the proceeds of the
sale of or production from, assets of the Borrower or any of its Consolidated
Subsidiaries (whether or not such guarantee or Lien is called upon) shall be
included.
"Consolidated Cash Taxes" shall mean, for any period, the aggregate amount
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of all taxes of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, to the extent the same are paid in
cash by the Borrower or any of its Consolidated Subsidiaries during such period.
"Consolidated Capital Expenditures" shall mean, for any period, the sum of
---------------------------------
all amounts that would, in accordance with GAAP, be included as additions to
property, plant and equipment and other capital expenditures on a consolidated
statement of cash flows for the Borrower and its Consolidated Subsidiaries
during such period (including the amount of assets leased under any Capital
Lease). Notwithstanding the foregoing, the term "Consolidated Capital
Expenditures" shall not include capital expenditures in respect of the
reinvestment of Insurance Proceeds and Condemnation Awards received by the
Borrower and its Subsidiaries to the extent that such reinvestment is permitted
under the Credit Documents.
"Consolidated EBITDA" shall mean, for any period, the sum of (a)
-------------------
Consolidated Net Income for such period, plus (b) an amount which, in the
----
determination of Consolidated Net Income for such period, has been deducted for
(i) interest expense, (ii) total federal, state, local and foreign income, value
added and similar taxes and (iii) depreciation and amortization expense, plus
----
(c) all non-cash merger, restructuring and transaction costs and expenses
related to acquisitions minus (d) any actual subsequent cash payments made in
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respect of previously recorded non-cash costs and expenses described in
paragraph (c), minus (e) an amount which, in the determination of Consolidated
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Net Income for such period, has been added for (i) interest income and (ii) any
non-cash income or non-cash gains, all as determined in accordance with GAAP
plus (f) any non-cash expenses or losses.
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"Consolidated EBITDAR" shall mean, for any period, the sum of (a)
--------------------
Consolidated Net Income for such period, plus (b) an amount which, in the
----
determination of Consolidated Net Income for such period has been deducted for
(i) interest expense, (ii) total federal, state, local and foreign income, value
added and similar taxes, (iii) depreciation and amortization expense and (iii)
Consolidated Rent Expense, plus (c) all non-cash merger, restructuring and
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transaction costs and expenses related to acquisitions minus (d) any actual
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subsequent cash payments made in respect of previously recorded non-cash costs
and expenses described in paragraph (c), minus (e) an amount which, in the
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determination of Consolidated Net Income for such period, has been added for (i)
interest income and (ii) any non-cash income or non-cash gains plus (f)
----
7
any non-cash expenses or losses.
"Consolidated Fixed Charges" shall mean, for any period, the sum of (a)
--------------------------
Consolidated Cash Interest Expense for such period plus (b) Consolidated
----
Scheduled Debt Payments for such period plus (c) Consolidated Cash Dividends for
----
such period plus (d) Consolidated Rent Expense.
----
"Consolidated Maintenance Capital Expenditures" shall mean, for any period,
---------------------------------------------
the sum of all amounts that would, in accordance with GAAP, be included as
additions to property, plant and equipment and other capital expenditures,
incurred in the ordinary course of business, consistent with past practice, with
respect to the general maintenance of the Property of the Borrower and its
Subsidiaries, on a consolidated statement of cash flows for the Borrower and its
Consolidated Subsidiaries during such period (including the amount of assets
leased under any Capital Lease). Notwithstanding the foregoing, the term
"Consolidated Maintenance Capital Expenditures" shall not include (i) capital
expenditures in respect of the reinvestment of Insurance Proceeds and
Condemnation Awards received by the Borrower and its Subsidiaries to the extent
that such reinvestment is permitted under the Credit Documents and (ii) capital
expenditures incurred with respect to Permitted Acquisitions.
"Consolidated Net Income" shall mean, for any period, net income (or loss)
-----------------------
after taxes of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, for such period; provided that there
--------
shall be excluded from such calculation of net income (or loss) (a) the income
of any Person in which any other Person (other than the Borrower or any of its
Subsidiaries) has any equity interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Subsidiaries or the
date such Person's assets are acquired by the Borrower or any of its
Subsidiaries, except as provided in the definition of Pro Forma Basis set forth
in this Section 1.1, (c) the income of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Subsidiary, (d)
except for purposes of Section 7.19(c), any after-tax gains or losses
attributable to sales of assets out of the ordinary course of business (e)
except for purposes of Section 7.19(c), to the extent not included in clauses
(a) through (d) above, any non-cash or non-recurring extraordinary gains or
losses and (f) except for purposes of Section 7.19(c), gain or loss attributable
to discontinued operations sold to unrelated third parties in accordance with
the terms and conditions of this Agreement; provided, that, nothing in this
-------- ----
definition shall be deemed to imply that any such sale is permitted under this
Agreement.
"Consolidated Net Worth" shall mean, as of any date, shareholders' equity
----------------------
or net worth of the Borrower and its Consolidated Subsidiaries, as determined on
a consolidated basis in accordance with GAAP, excluding amounts attributable to
Disqualified Stock.
"Consolidated Parties" shall mean the Borrower and its respective
--------------------
Subsidiaries, and
8
"Consolidated Party" shall mean any one of them.
------------------
"Consolidated Rent Expense" shall mean, for any period, the aggregate
-------------------------
amount of cash and accrued rentals payable by the Borrower and the Subsidiaries,
determined on a consolidated basis in accordance with GAAP, for such period with
respect to Operating Leases.
"Consolidated Scheduled Debt Payments" shall mean, for any period, with
------------------------------------
respect to the Borrower and its Consolidated Subsidiaries on a consolidated
basis, the sum of all scheduled payments of principal on Funded Indebtedness for
such period (including the principal component of payments due on Capital Leases
during such period, but excluding payments due on Revolving Loans during such
period); provided that Consolidated Scheduled Funded Debt Payments shall not
--------
include voluntary prepayments of Funded Indebtedness, mandatory prepayments
required pursuant to Section 3.3(b) or other mandatory prepayments of Funded
Indebtedness.
"Consolidated Subsidiaries" of any Person shall mean all subsidiaries of
-------------------------
such Person that should be consolidated with such Person for financial reporting
purposes in accordance with GAAP.
"Consolidated Total Assets" shall mean, as of any date, all assets which
-------------------------
would, in accordance with GAAP, be included on a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of such date as assets.
"Continue", "Continuation", and "Continued" shall refer to the continuation
-------- ------------ ---------
pursuant to Section 3.2 of a Fixed Rate Loan of one Type as a Fixed Rate Loan of
the same Type from one Interest Period to the next Interest Period.
"Convention" shall have the meaning assigned to such term in Section 10.10.
----------
"Convert", "Conversion", and "Converted" shall refer to a conversion
------- ---------- ---------
pursuant to Section 3.2 or Section 3.9 of one Type of Loan into another Type of
Loan.
"Credit Documents" shall mean a collective reference to this Agreement, the
----------------
Notes, the LOC Documents, each Joinder Agreement, the Agent's Fee Letter, the
Collateral Documents, the Subsidiaries Guarantee Agreement, the Indemnity,
Subrogation and Contribution Agreement, the Intercompany Notes and all other
related agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto (in each case as the same may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time), and
"Credit Document" shall mean any one of them.
---------------
"Credit Obligations" shall mean, without duplication, all of the
------------------
obligations of the Credit Parties to the Lenders, the Issuing Lender or the
Agent, whenever arising, under this Agreement, the Notes, the Collateral
Documents, the Subsidiaries Guarantee Agreement or any of the other Credit
Documents (including any interest accruing after the occurrence of a Bankruptcy
Event with respect to any Credit Party, regardless of whether such interest is
an
9
allowed claim under the Bankruptcy Code).
"Credit Parties" shall mean the Borrower and the Subsidiary Guarantors, and
--------------
"Credit Party" shall mean any one of them.
------------
"Debt Issuance" shall mean the issuance of any Indebtedness for borrowed
-------------
money by any Consolidated Party; provided that the foregoing definition shall
--------
not be deemed to imply that any such Debt Issuance is permitted under this
Agreement.
"Default" shall mean any event, act or condition which with notice or lapse
-------
of time, or both, would constitute an Event of Default.
"Deposit Account" shall mean a deposit account with any reputable bank or
---------------
other depository institution to the extent that the Borrower complies with
Section 7.20 of this Agreement with respect to such deposit account.
"Depository Bank Agreement" shall mean each agreement between any Credit
-------------------------
Party and any bank or other depository institution in substantially the form of
Exhibit B.
---------
"Disqualified Stock" of any Person shall mean (a) any Capital Stock of such
------------------
Person which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening
of any event or otherwise (i) matures or is mandatorily redeemable or subject to
any mandatory repurchase requirement, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock or (iii) is redeemable or subject to any
repurchase requirement arising at the option of the holder thereof, in whole or
in part, in each case on or prior to the first anniversary of the Termination
Date and (b) if such Person is a Subsidiary of the Borrower, any Preferred Stock
of such Person.
"Dollars" and "$" shall mean dollars in lawful currency of the United
------- -
States of America.
"Domestic Subsidiary" shall mean, with respect to any Person, any
-------------------
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Eligible Assignee" shall mean: (a) any Lender; (b) any Affiliate of a
-----------------
Lender; and (c) any other commercial bank, financial institution or "accredited
investor" (as defined in Regulation D under the Securities Act of 1933, as
amended) approved by the Agent and, unless an Event of Default has occurred and
is continuing at the time any assignment is effected in accordance with Section
10.3(b), the Borrower, such approval not to be unreasonably withheld or delayed
by the Borrower and such approval to be deemed given by the Borrower if no
objection from the Borrower is received by the assigning Lender and the Agent
within five Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; provided, however, that
-------- -------
neither the Borrower nor any Affiliate of the Borrower shall qualify as an
Eligible Assignee.
10
"Environmental Laws" shall mean any and all applicable Federal, state,
------------------
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment, including, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or wastes.
"Equity Issuance" shall mean any issuance by any Consolidated Party of any
---------------
Capital Stock to any Person or the receipt by any such Person of a capital
contribution from any other Person, including the issuance of any of its Capital
Stock pursuant to the exercise of options or warrants and the conversion of any
Indebtedness to equity; provided that the foregoing definition shall not be
--------
deemed to imply that any such issuance is permitted under this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, including the rules and regulations
thereunder, all as the same may be in effect from time to time. References to
sections of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" shall mean an entity which is under common control with
---------------
any Consolidated Party within the meaning of Section 4001(a)(14) of ERISA, or is
a member of a group which includes any Consolidated Party and which is treated
as a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" shall mean (a) with respect to any Plan, the occurrence of a
-----------
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA); (b) the withdrawal by any Consolidated Party or
any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan; (c) the distribution of
a notice of intent to terminate or the actual termination of a Plan pursuant to
Section 4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section 4042 of
ERISA; (e) any event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (f) the complete or partial withdrawal of any Consolidated
Party or any ERISA Affiliate from a Multiemployer Plan; (g) the conditions for
imposition of a lien under Section 302(f) of ERISA exist with respect to any
Plan; or (h) the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"Euro" shall mean a European single or common currency implemented by the
----
European economic and monetary union.
11
"Eurodollar Loan" shall mean any Loan bearing interest at a rate determined
---------------
by reference to the Eurodollar Rate.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
---------------
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Agent to be equal to the quotient
obtained by dividing (a) the Interbank Offered Rate for such Eurodollar Loan for
such Interest Period by (b) 1 minus the Reserve Requirement for such Eurodollar
Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in Section
----------------
8.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
------------
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
--------
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Agent (in its
individual capacity) on such day on such transactions as determined by the
Agent.
"Fees" shall mean all fees payable pursuant to Section 3.5.
----
"Fixed Charge Coverage Ratio" shall mean, as of any day, the ratio of (a)
---------------------------
Consolidated EBITDAR for the period of four consecutive fiscal quarters of the
Borrower ending on, or most recently preceding, such day, minus Consolidated
-----
Maintenance Capital Expenditures for such period (other than any thereof
financed by Indebtedness), minus Consolidated Cash Taxes for such period to (b)
-----
Consolidated Fixed Charges for such period.
"Fixed Rate Loans" shall mean Eurodollar Loans.
----------------
"Foreign Subsidiary" shall mean, with respect to any Person, any Subsidiary
------------------
of such Person which is not a Domestic Subsidiary of such Person.
"Funded Indebtedness" shall mean, with respect to any Person, without
-------------------
duplication, (a) all Indebtedness of such Person other than Indebtedness of the
types referred to in clause (e), (f), (g), (i), (k) and (l) of the definition of
"Indebtedness" set forth in this Section 1.1, (b) all Indebtedness of another
Person of the type referred to in clause (a) above secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (c) all Guaranty Obligations of
such Person with respect to Indebtedness of the type referred to in clause (a)
above of another Person and (d) Indebtedness of the type referred to in
12
clause (a) above of any partnership or unincorporated joint venture in which
such Person is general partner or for which such Person is otherwise legally
obligated or has a reasonable expectation of being liable with respect thereto.
"GAAP" shall mean generally accepted accounting principles in the United
----
States applied on a consistent basis, subject to the terms of Section 1.3.
"Government Acts" shall have the meaning assigned to such term in Section
---------------
2.2(i).
"Governmental Authority" shall mean any Federal, state, local or foreign
----------------------
court or governmental agency, commission, board, bureau, authority,
instrumentality or judicial or regulatory body or entity.
"Group" shall have the meaning assigned to such term in the definition of
-----
"Change of Control."
"Guarantors" shall mean each of the Subsidiary Guarantors, together with
----------
their successors and permitted assigns, and "Guarantor" shall mean any one of
---------
them.
"Guaranty Obligations" shall mean, with respect to any Person, without
--------------------
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including any obligation, whether or
not contingent, (a) to purchase any such Indebtedness or any Property
constituting security therefor, (b) to advance or provide funds or other support
for the payment or purchase of any such Indebtedness or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including keep well agreements, maintenance agreements, comfort letters or
similar agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (c) to lease or purchase Property, securities
or services primarily for the purpose of assuring the holder of such
Indebtedness against loss in respect thereof or (d) to otherwise assure or hold
harmless the holder of such Indebtedness against loss in respect thereof. For
purposes hereof, the amount of any Guaranty Obligation shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Indebtedness" of any Person shall mean (a) all obligations of such Person
------------
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person
(other than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all obligations
of such Person issued or assumed as the deferred purchase price of Property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six (6) months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(e) all obligations of such Person under take-or-pay or similar
13
arrangements or under commodities agreements, (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Guaranty
Obligations of such Person, (h) the principal portion of all obligations of such
Person under Capital Leases, (i) all obligations of such Person under foreign
currency exchange agreements, (j) the maximum amount of all standby letters of
credit issued or bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all Disqualified Stock of such Person, (l) the Indebtedness
of any partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer and (n) with respect to the Borrower, the
aggregate amount borrowed by, advanced to or otherwise received by the Borrower
with respect to the Permitted Receivables Securitization.
"Indemnified Party" shall have the meaning assigned to such term in Section
-----------------
10.5(b).
"Indemnity, Subrogation and Contribution Agreement" shall mean the
-------------------------------------------------
Indemnity, Subrogation and Contribution Agreement dated as of the Closing Date
in the form of Exhibit C to be executed by the Subsidiary Guarantors, as
---------
amended, modified, restated or supplemented from time to time.
"Insurance Proceeds" shall mean all insurance proceeds (other than business
------------------
interruption insurance proceeds), damages, awards, claims and rights of action
with respect to any Casualty.
"Intellectual Property" shall have the meaning assigned to such term in
---------------------
Section 5.16.
"Interbank Offered Rate" shall mean, for any Eurodollar Loan for any
----------------------
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page)
as the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any
reason such rate is not available, the term "Interbank Offered Rate" shall mean,
for any Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page, the
-------
applicable rate shall be the arithmetic mean of all such rates (rounded upwards,
if necessary, to the nearest 1/100 of 1%).
"Intercompany Notes" shall mean the promissory notes issued as contemplated
------------------
by clause (g) of the definition of Permitted Investments set forth in this
Section 1.1, in the form of Exhibit D.
---------
"Interest Payment Date" shall mean (a) as to Base Rate Loans, the last
---------------------
Business Day of
14
each March, June, September and December, (b) as to Eurodollar Loans, the last
day of each applicable Interest Period for any such Loan and, in addition, where
the applicable Interest Period for any such Loan is greater than three months,
the date three months from the beginning of the Interest Period and each three
months thereafter and (c) as to all Loans, the Maturity Date of such Loans.
"Interest Period" shall mean as to Eurodollar Loans, a period of one, two,
---------------
three or six months' duration, as the Borrower may elect, commencing, in each
case, on the date of the borrowing (including conversions and extensions
thereof); provided, however, (i) if any Interest Period would end on a day which
-------- -------
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (ii) no Interest Period for any Loan shall
extend beyond the Maturity Date for such Loan and (iii) in the case of
Eurodollar Loans, where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last Business Day of such
calendar month.
"Investment" in any Person shall mean (a) the acquisition (whether for
----------
cash, Property, services, assumption of Indebtedness, securities or otherwise)
of assets, shares of Capital Stock, bonds, notes, debentures, partnership, joint
venture or other ownership interests or other securities of such other Person or
(b) any deposit with, or advance, loan or other extension of credit to, such
Person (other than deposits made in connection with the purchase of equipment or
other assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including any Guaranty Obligations
(including any support for a letter of credit issued on behalf of such Person)
incurred for the benefit of such Person.
"Issuing Lender" shall mean NationsBank, in its capacity as the issuer of
--------------
Letters of Credit, and its successors in such capacity.
"Issuing Lender Fees" shall have the meaning assigned to such term in
-------------------
Section 3.5(c)(ii).
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
-----------------
form of Exhibit E, executed and delivered by an Additional Subsidiary Guarantor
---------
in accordance with the provisions of Section 6.11.
"Lender" shall mean any of the Persons identified as a "Lender" on the
------
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their successors
and permitted assigns. Unless the context clearly indicates otherwise, the term
"Lenders" shall include the Issuing Lender.
"Lending Party" shall have the meaning assigned to such term in Section
-------------
10.14.
"Letter of Credit" shall mean any letter of credit issued by the Issuing
----------------
Lender for the
15
account of the Borrower in accordance with the terms of Section 2.2.
"Letter of Credit Fee" shall have the meaning assigned to such term in
--------------------
Section 3.5(c)(i).
"Leverage Ratio" shall mean, as of any day, the ratio of (a) Funded
--------------
Indebtedness as of such day to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ending on, or most recently
preceding, such day.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
----
easement, assignment, deposit arrangement, restriction, restrictive covenant,
lease, sublease, option, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC as
adopted and in effect in the relevant jurisdiction or other similar recording or
notice statute, and any lease in the nature thereof).
"Loan" or "Loans" shall mean the Revolving Loans and, by Type, the Base
---- -----
Rate Loans and Eurodollar Loans. Loans may be designated by Type. As the
context requires, a "Loan" of a particular Type refers to a portion of the total
outstanding Loans of such Type as to which a single Interest Period is in
effect.
"LOC Commitment" shall mean the commitment of the Issuing Lender to issue
--------------
Letters of Credit in an aggregate face amount at any time outstanding (together
with the amounts of any unreimbursed drawings thereon) of up to the LOC
Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such term in
--------------------
Section 2.2.
"LOC Documents" shall mean, with respect to any Letter of Credit, such
-------------
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or at risk or (b) any collateral security for such
obligations.
"LOC Obligations" shall mean the Borrower's reimbursement obligations
---------------
hereunder (actual or contingent) arising from drawings under Letters of Credit.
The amount of the LOC Obligations outstanding at any time equals the sum of (a)
the maximum aggregate amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such Letters of
Credit, plus (b) the aggregate amount of all drawings under Letters of Credit
----
honored by the Issuing Lender but not theretofore reimbursed by the Borrower.
The LOC Obligations of any Lender at any time shall mean its Revolving
Commitment Percentage of the aggregate LOC Obligations at such time.
16
"Material Adverse Change" shall mean a material adverse change in (a) the
-----------------------
condition (financial or otherwise), operations, business, assets, liabilities
(actual or contingent), historical or projected revenues or cash flows or
prospects of the Consolidated Parties taken as a whole, (b) the ability of any
Credit Party to perform any material obligation under the Credit Documents to
which it is a party or (c) the material rights and remedies of the Lenders under
the Credit Documents. In determining whether any individual event or
occurrence of the foregoing types would result in a Material Adverse Change,
notwithstanding that a particular event or occurrence does not itself constitute
such a change, a Material Adverse Change shall be deemed to have occurred if the
cumulative effect of such event or occurrence and all other events or
occurrences of the foregoing types which have occurred would result in a
Material Adverse Change.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
-----------------------
condition (financial or otherwise), operations, business, assets, liabilities
(actual or contingent), historical or projected revenues or cash flows or
prospects of the Consolidated Parties taken as a whole, (b) the ability of any
Credit Party to perform any material obligation under the Credit Documents to
which it is a party or (c) the material rights and remedies of the Lenders under
the Credit Documents. In determining whether any individual event or occurrence
of the foregoing types would result in a Material Adverse Effect,
notwithstanding that a particular event or occurrence does not itself have such
effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event or occurrence and all other events or
occurrences of the foregoing types which have occurred would result in a
Material Adverse Effect.
"Material Contracts" shall have the meaning assigned to such term in
------------------
Section 5.21.
"Material Intellectual Property" shall have the meaning assigned to such
------------------------------
term in Section 5.16.
"Material Licensed Intellectual Property" shall have the meaning assigned
---------------------------------------
to such term in Section 5.16.
"Material Owned Intellectual Property" shall have the meaning assigned to
------------------------------------
such term in Section 5.16.
"Materials of Environmental Concern" shall mean any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous, toxic, radioactive or explosive substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws, including
asbestos, polychlorinated biphenyls and ureaformaldehyde insulation and all
other substances or wastes of any nature regulated pursuant to any Environmental
Law.
"Maturity Date" shall mean the Termination Date.
-------------
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor to
-------
such company in the business of rating securities.
17
"Mortgage Instruments" shall have the meaning assigned such term in Section
--------------------
6.12(b).
"Mortgaged Properties" shall have the meaning assigned such term in Section
--------------------
6.12(b).
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan as
------------------
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" shall mean a Plan which any Consolidated Party or
----------------------
any ERISA Affiliate and at least one employer other than any Consolidated Party
or any ERISA Affiliate are contributing sponsors.
"NationsBank" shall mean NationsBank, N.A. and its successors.
-----------
"Net Cash Proceeds" shall mean (a) with respect to any Asset Disposition,
-----------------
(i) the gross amount of cash proceeds (including Insurance Proceeds and
Condemnation Awards in the case of any Casualty or Condemnation except to the
extent and for long as such Insurance Proceeds or Condemnation Awards are
Reinvestment Funds or unless such Insurance Proceeds or Condemnation Awards are
to be used for repair, restoration or replacement pursuant to plans approved by
the Required Lenders) actually paid to or actually received by any Consolidated
Party in respect of such Asset Disposition (including cash proceeds subsequently
received at any time in respect of such Asset Disposition from non-cash
consideration initially received or otherwise), less (ii) the sum of (A) the
----
amount, if any, of all taxes (other than income taxes) and the Borrower's good-
faith best estimate of all income taxes (to the extent that such amount shall
have been set aside for the purpose of paying such taxes when due), and
customary fees, brokerage fees, commissions, costs and other expenses (other
than those payable to any Consolidated Party or any Affiliate of any such
Person) that are incurred in connection with such Asset Disposition and are
payable by the seller or the transferor of the assets or Property to which such
Asset Disposition relates, but only to the extent not already deducted in
arriving at the amount referred to in clause (a)(i) above, (B) appropriate
amounts that must be set aside as a reserve in accordance with GAAP against any
liabilities associated with such Asset Disposition and (C) if applicable, the
amount of Indebtedness secured by a Permitted Lien that has been repaid or
refinanced as required in accordance with its terms with the proceeds of such
Asset Disposition; and (b) with respect to any Equity Issuance or Debt Issuance,
the gross amount of cash proceeds paid to or received by any Consolidated Party
in respect of such Equity Issuance or Debt Issuance, as the case may be
(including cash proceeds subsequently received at any time in respect of such
Equity Issuance or Debt Issuance from non-cash consideration initially received
or otherwise), net of underwriting discounts and commissions or placement fees,
investment banking fees, legal fees, consulting fees, accounting fees and other
customary fees and expenses directly incurred by any Consolidated Party in
connection therewith (other than those payable to any Consolidated Party or any
Affiliate of any such Person).
"NMS" shall mean NationsBanc Xxxxxxxxxx Securities LLC.
---
"Note" or "Notes" shall mean the Revolving Notes, individually or
---- -----
collectively, as
18
appropriate.
"Notice of Borrowing" shall mean a written notice of borrowing in
-------------------
substantially the form of Exhibit F, as required by Section 2.1(b)(i).
---------
"Notice of Extension/Conversion" shall mean the written notice of extension
------------------------------
or conversion in substantially the form of Exhibit G, as required by Section
---------
3.2.
"Operating Lease" shall mean, as applied to any Person, any lease
---------------
(including leases which may be terminated by the lessee at any time) of any
Property (whether real, personal or mixed) by such Person as lessee which is not
a Capital Lease.
"Other Taxes" shall have the meaning assigned to such term in Section
-----------
3.10(b).
"Participation Interest" shall mean a purchase by a Lender of a
----------------------
participation in Letters of Credit or LOC Obligations as provided in Section 2.2
or in any Loans or other obligations as provided in Section 3.13.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Perfection Certificate" shall mean a certificate from the Credit Parties
----------------------
substantially in the form of Exhibit H.
---------
"Permitted Acquisition" shall mean an acquisition by the Borrower or any
---------------------
Subsidiary of the Borrower of the Capital Stock or all (or any substantial part
for which audited financial statements or other financial information reasonably
satisfactory to the Agent is available) of the Property of another Person
(including by merger or consolidation or by incorporation of a new Subsidiary)
for up to the fair market value of the Capital Stock or Property acquired;
provided that (a) the Capital Stock or Property acquired in such acquisition
--------
relates to a line of business similar to the business of the Borrower or any of
its Subsidiaries engaged in on the Closing Date, (b) the representations and
warranties made by the Credit Parties in each Credit Document shall be true and
correct in all material respects at and as of the date of such acquisition (as
if made on such date after giving effect to such acquisition) except to the
extent such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties shall be true and correct in
all material respects at and as of such earlier date), (c) the Agent shall have
received all items in respect of the Capital Stock or Property acquired in such
acquisition (and/or the seller thereof) required to be delivered by the terms of
Section 6.11 and/or Section 6.12, (d) in the case of an acquisition of the
Capital Stock of another Person, (i) except in the case of the incorporation of
a new Subsidiary, the board of directors (or other comparable governing body) of
such other Person shall have duly approved such acquisition and (ii) the Capital
Stock acquired shall constitute 100% of the Total Voting Power and ownership
interest of the issuer thereof, (e) no Default or Event of Default shall have
occurred and be continuing immediately before or immediately after giving effect
to such acquisition and the Borrower shall have delivered to the Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving effect to such
acquisition on a Pro Forma Basis, the
19
Borrower shall be in compliance with all of the financial covenants set forth in
Section 7.19 as of the last day of the most recent period of four consecutive
fiscal quarters of the Borrower which precedes or ends on the date of such
acquisition and with respect to which the Agent has received the Required
Financial Information and (f) for any single acquisition (or series of related
acquisitions) (i) the aggregate consideration (including cash, assumption of
indebtedness and non-cash consideration) shall not exceed $75,000,000 and (ii)
the cash portion of the purchase price for any such acquisition shall not exceed
$50,000,000.
"Permitted Investments" shall mean Investments which consist of (a) cash
---------------------
held in (i) a deposit account with the Agent, (ii) a Deposit Account or (iii) a
deposit account with any other reputable bank or other depository institution
which has executed and delivered a Depository Bank Agreement with the Agent; (b)
Cash Equivalents subject to a perfected first priority security interest of the
Agent in favor of the Secured Parties; (c) accounts receivable created, acquired
or made by the Borrower and its Subsidiaries in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; (d)
Investments consisting of Capital Stock, obligations, securities or other
Property received by the Borrower and its Subsidiaries in settlement of accounts
receivable (created in the ordinary course of business) from bankrupt obligors;
(e) Investments existing as of the Closing Date and set forth in Schedule 1.1A
-------------
and any Investments using the Net Cash Proceeds of the liquidation of such
Investments; (f) advances to employees for moving and travel expenses in the
ordinary course of business consistent with past practices; (g) Investments in
the Borrower or any Wholly Owned Subsidiary of the Borrower, so long as (i) all
such Investments in Subsidiaries of the Borrower shall be made by the Borrower
or any other Subsidiary of the Borrower, (ii) all such Investments in
Subsidiaries of the Borrower shall (A) in the case of the initial capitalization
of any such Subsidiary, consist of common stock which is issued for
consideration equal to the par value (or the equivalent, in the case of any
Foreign Subsidiary) of such shares and which is pledged to the Agent for the
benefit of the Secured Parties or (B) in all other cases, be evidenced by
Intercompany Notes pledged to the Agent for the benefit of the Secured Parties
and (iii) the aggregate principal amount of such Intercompany Notes issued by
Foreign Subsidiaries of the Borrower outstanding at any time shall not exceed
$10,000,000; (h) Permitted Acquisitions, (i) Investments in direct or indirect
wholly owned Foreign Subsidiaries of the Borrower, so long as the aggregate
principal amount of all such Investments does not exceed $30,000,000 at any time
and (j) other Investments not to exceed $10,000,000 in the aggregate.
"Permitted Liens" shall mean (a) Liens in favor of the Agent on behalf of
---------------
the Secured Parties; (b) Liens (other than Liens created or imposed under ERISA)
for taxes or other governmental charges, assessments or levies which are not yet
due or being contested in good faith by appropriate proceedings diligently
pursued and for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof); (c) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts which are not yet due and payable
--------
(or, if due and payable, are unfiled and no other action has been taken to
enforce the same) or are being contested in good faith by
20
appropriate proceedings diligently pursued and for which adequate reserves
determined in accordance with GAAP have been established (and as to which the
Property subject to any such Lien is not yet subject to foreclosure, sale or
loss on account thereof); (c) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of title
arising in the ordinary course of business, provided that such Liens secure only
amounts which are not yet due and payable (or, if due and payable, are unfiled
and no other action has been taken to enforce the same) or are being contested
in good faith by appropriate proceedings diligently pursued and for which
adequate reserves determined in accordance with GAAP have been established (and
as to which the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof); (d) Liens (other than Liens
created or imposed under ERISA) incurred or deposits made by the Borrower or any
of its Subsidiaries in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of Indebtedness);
(e) judgment Liens not giving rise to an Event of Default so long as such Lien
is adequately bonded and any appropriate legal proceeding which may have been
duly initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired, provided that the judgments secured shall, within 30 days
--------
after the entry thereof, have been discharged or execution thereof stayed
pending appeal (and shall have been discharged within 30 days after the
expiration of any such stay); (f) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or irregularities in title and
other similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered Property for its intended purposes; (g) Liens on
Property securing purchase money Indebtedness (including Capital Leases) to the
extent permitted under Section 7.1(c), provided that (i) any such Indebtedness
--------
is incurred and such Lien attaches to such Property concurrently with or within
90 days after the acquisition thereof and (ii) such Indebtedness is not secured
by a Lien on any other assets; (h) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower and its
Subsidiaries; (i) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases (excluding Capital
Leases) permitted by this Agreement; (j) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties not
yet due and payable in connection with the importation of goods; (k) Liens
arising in connection with a Permitted Receivables Securitization (including any
related filings of any financing statements), but only to the extent that any
such Lien relates to the applicable transferred assets actually sold,
contributed, financed or otherwise conveyed or pledged pursuant to such
transaction; (l) normal and customary rights of setoff upon deposits of cash in
favor of the Agent or any other bank or other depository institution which has
executed and delivered a Depository Bank Agreement with the Agent; and (m) Liens
existing as of the Closing Date and set forth on Schedule 1.1B and any
-------------
replacements or substitutions thereof; provided that (i) no such Lien shall at
--------
any time be extended to or cover any Property other than the Property subject
thereto on the Closing Date and (ii) the principal amount of the Indebtedness or
other obligations secured by such Liens shall not be extended, renewed, refunded
or refinanced.
"Permitted Receivables Securitization" shall mean one or more
------------------------------------
securitizations of Receivables and related assets on terms reasonably
satisfactory to the Agent; provided that the value of such Receivables and
--------
related assets shall not exceed $125,000,000.
"Person" shall mean any individual, partnership, joint venture, firm,
------
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority or any other entity.
21
"Personnel" shall have the meaning assigned to such term in Section
---------
5.16(c).
"Plan" shall mean any employee benefit plan (as defined in Section 3(3) of
----
ERISA) which is covered by ERISA and with respect to which any Consolidated
Party or any ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" within the
meaning of Section 3(5) of ERISA.
"Prepayment Account" shall have the meaning assigned to such term in
------------------
Section 3.3(b)(iv).
"Preferred Stock", as applied to the Capital Stock of any person, shall
---------------
mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over the Capital Stock of any other class of
such person.
"Prime Rate" shall mean the per annum rate of interest established from
----------
time to time by NationsBank as its prime rate, which rate may not be the lowest
rate of interest charged by NationsBank to its customers.
"Pro Forma Basis" shall mean that, for purposes of calculating compliance
---------------
in respect of any transaction with each of the financial covenants set forth in
Section 7.19, such transaction (and any other transaction which occurred during
the relevant four-fiscal-quarter period) shall be deemed to have occurred as of
the first day of the most recent period of four consecutive fiscal quarters of
the Borrower which precedes or ends on the date of such transaction with respect
to which the Agent has received the Required Financial Information. As used in
this definition, "transaction" shall mean (a) any incurrence or assumption of
Indebtedness (and the concurrent retirement of any other Indebtedness) as
referred to in Section 7.1(g), (b) any merger or consolidation as referred to in
Section 7.4(c) or (d), (c) any Asset Disposition of a business or business unit
as referred to in Section 7.5(i) or (d) any Permitted Acquisition referred to in
Section 7.6 and clause (e) of the definition of "Permitted Acquisition" set
forth in this Section 1.1. In connection with any calculation of the financial
covenants set forth in Section 7.19 upon giving effect to a transaction (and any
other transaction which occurred during the relevant four-fiscal-quarter period)
on a Pro Forma Basis for purposes of Section 7.1(g), Section 7.4, Section 7.5 or
Section 7.6 and clause (e) of the definition of "Permitted Acquisition" set
forth in this Section 1.1, as applicable:
(i) for purposes of any such calculation in respect of any
incurrence or assumption of Indebtedness as referred to in Section 7.1(g),
(A) if such Indebtedness has a floating or formula rate, the rate of
interest for such Indebtedness for the applicable period for purposes of
the calculations contemplated by this definition shall be determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of such calculations and (B) any other
Indebtedness which is retired concurrently with such incurrence or
assumption shall be excluded and deemed to have been retired as of the
first day of the relevant four fiscal-quarter period;
22
(ii) for purposes of any such calculation in respect of any Asset
Disposition of a business or business unit as referred to in Section 7.5,
(1) income statement items (whether positive or negative) attributable to
the Property disposed of in such Asset Disposition shall be excluded to the
extent relating to any period prior to the date of such transaction and (2)
any Indebtedness which is retired in connection with such Asset Disposition
shall be excluded and deemed to have been retired as of the first day of
the relevant four fiscal-quarter period; and
(iii) for purposes of any such calculation in respect of any merger
or consolidation as referred to in Section 7.4(c) or (d) or any Permitted
Acquisition as referred to in Section 7.6 and clause (e) of the definition
of "Permitted Acquisition" set forth in this Section 1.1, (A) any
Indebtedness incurred by the Borrower or any of its Subsidiaries in
connection with such transaction shall be deemed to have been incurred as
of the first day of the relevant four fiscal-quarter period (B) if such
Indebtedness has a floating or formula rate, then the rate of interest for
such Indebtedness for the applicable period for purposes of the
calculations contemplated by this definition shall be determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of such calculations and (C) income
statement items (whether positive or negative) attributable to the Property
acquired in such transaction or to the Investment comprising such
transaction, as applicable, shall be included as if such transaction had
occurred as of the first day of the relevant four fiscal-quarter period.
"Pro Forma Compliance Certificate" shall mean a certificate of the chief
--------------------------------
financial officer of the Borrower delivered to the Agent in connection with (i)
any incurrence or assumption of Indebtedness (and the concurrent retirement of
any other Indebtedness) as referred to in Section 7.1(g), (ii) any merger or
consolidation as referred to in Section 7.4(c) or (d), (iii) any Asset
Disposition as referred to in Section 7.5(i) or (iv) any Permitted Acquisition
as referred to in Section 7.6 and clause (e) of the definition of "Permitted
Acquisition" set forth in this Section 1.1, as applicable, and containing
reasonably detailed calculations, upon giving effect to the applicable
transaction on a Pro Forma Basis, of the Fixed Charge Coverage Ratio and the
Leverage Ratio as of the last day of the most recent period of four consecutive
fiscal quarters of the Borrower which precede or end on the date of the
applicable transaction and with respect to which the Agent shall have received
the Required Financial Information.
"Property" shall mean any interest in any kind of property or asset,
--------
whether real, personal or mixed, or tangible or intangible.
"Receivables" shall mean all accounts receivable, receivables, and
-----------
obligations for payment created or arising from the sale of inventory or the
rendering of services in the ordinary course of business.
"Register" shall have the meaning assigned to such term in Section 10.3(c).
--------
"Regulation T, U or X" shall mean Regulation T, U or X, respectively, of
--------------------
the Board of
23
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Reinvestment Funds" shall mean, with respect to any Insurance Proceeds
------------------
from a Casualty or any Condemnation Award from a Condemnation in excess of
$5,000,000, that portion of such funds as shall, according to a certificate of a
Responsible Officer of the Borrower delivered to the Agent within 30 days after
the occurrence of such Casualty or Condemnation (and in any case prior to the
receipt thereof by any Consolidated Party), be reinvested in the repair,
restoration or replacement of the Properties that were the subject of such
Casualty or Condemnation or otherwise reinvested in the business; provided that
--------
(a) the aggregate amount of such proceeds with respect to any such event or
series of related events shall not exceed $10,000,000 without the prior written
consent of the Required Lenders, (b) such certificate shall be accompanied by
evidence reasonably satisfactory to the Agent that any Property subject to such
Casualty or Condemnation has been or will be repaired, restored or replaced to
its condition immediately prior to such Casualty or Condemnation, (c) pending
such reinvestment, the entire amount of such proceeds shall be deposited in an
interest bearing account with the Agent for the benefit of the Secured Parties,
over which the Agent shall have sole control and exclusive right of withdrawal,
(d) from and after the date of delivery of such certificate, the Borrower shall
diligently proceed, in a commercially reasonable manner, to complete the repair,
restoration or replacement of the Properties that were the subject of such
Casualty or Condemnation as described in such certificate and (e) no Default or
Event of Default shall have occurred and be continuing; and provided further
-------- -------
that, if any of the foregoing conditions shall cease to be satisfied at any
time, such funds shall no longer be deemed Reinvestment Funds and such funds
shall immediately be applied to prepayment of the Credit Obligations in
accordance with Section 3.3(b).
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
-------
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment (including the abandonment or discarding of barrels, containers
and other closed receptacles containing any Materials of Environmental Concern).
"Reportable Event" shall mean any of the events set forth in Section
----------------
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
"Required Financial Information" shall mean, with respect to any period,
------------------------------
the financial statements of the Borrower with respect to such period required
under Section 6.1(a) and (b).
"Required Lenders" shall mean, at any time, Lenders which are then in
----------------
compliance with their obligations hereunder (as determined by the Agent) and
holding in the aggregate at least a majority of the total Revolving Commitments
(or, if the Revolving Commitments have been terminated in whole, the outstanding
Revolving Loans and Participation Interests in outstanding Letters of Credit).
For purposes of the foregoing, (A) the interest of any Lender holding a Loan in
which any other Lender has a Participation Interest pursuant to Section 3.13
shall be calculated net of all such Participation Interests of other Lenders and
(B) the Participation Interest of any Lender pursuant to Section 3.13 in a Loan
held by any other Lender shall be counted as if such Lender holding such
Participation Interest held a
24
proportionate part of the related Loan directly.
"Requirement of Law" shall mean, as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule, regulation, order, writ, judgment,
injunction, decree, permit or determination of an arbitrator or a court or other
Governmental Authority or other restriction imposed by any Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its Property is subject.
"Reserve Requirement" shall mean, at any time, the maximum rate at which
-------------------
reserves (including any marginal, special, supplemental or emergency reserves)
are required to be maintained under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) by member
banks of the Federal Reserve System against "Eurocurrency liabilities" (as such
term is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of liabilities
which includes deposits by reference to which the Eurodollar Rate is to be
determined or (ii) any category of extensions of credit or other assets which
include Eurodollar Loans. The Eurodollar Rate shall be adjusted automatically
on and as of the effective date of any change in the Reserve Requirement.
"Responsible Officer" shall mean, as to any Person, the president, chief
-------------------
executive officer, chief operating officer, any financial officer, any vice
president or the general counsel of such Person (or, in the case of a
partnership, of the managing general partner of such Person).
"Restricted Payment" shall mean (i) any dividend or other distribution,
------------------
direct or indirect, on account of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any
class of Capital Stock of any Consolidated Party, now or hereafter outstanding.
"Revolving Commitment" shall mean, with respect to any Lender, the
--------------------
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving Loans in accordance with the
provisions of Section 2.1(a) and (ii) to purchase Participation Interests in
Letters of Credit in accordance with the provisions of Section 2.2(c).
"Revolving Commitment Percentage" shall mean, for any Lender, the
-------------------------------
percentage, if any, identified as its Revolving Commitment Percentage on
Schedule 1.1C (or in the Assignment and Acceptance pursuant to which such Lender
-------------
assumed its Revolving Commitment), as such percentage may be modified in
connection with any assignment made in accordance with the provisions of this
Agreement.
25
"Revolving Committed Amount" shall have the meaning assigned to such term
--------------------------
in Section 2.1(a).
"Revolving Credit Facility Obligations" shall mean, collectively, Revolving
-------------------------------------
Loans and LOC Obligations.
"Revolving Loans" shall have the meaning assigned to such term in Section
---------------
2.1(a).
"Revolving Note" or "Revolving Notes" shall mean the promissory notes of
-------------- ---------------
the Borrower in favor of each of the applicable Lenders evidencing the Revolving
Loans provided pursuant to Section 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
---
Hill, Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Sale and Leaseback Transaction" shall mean any direct or indirect
------------------------------
arrangement with any Person or to which any such Person is a party, providing
for the leasing to any Consolidated Party of any Property, whether owned by any
Consolidated Party as of the Closing Date or later acquired, which has been or
is to be sold or transferred by any Consolidated Party to such Person or to any
other Person from whom funds have been, or are to be, advanced by such Person on
the security of such Property.
"Secured Parties" shall mean (a) the Lenders, (b) the Agent, in its
---------------
capacity as such under each Credit Document, (c) the beneficiaries of each
indemnification obligation undertaken by any Consolidated Party under any Credit
Document and (d) the successors and assigns of the foregoing.
"Security Agreement" shall mean the Pledge and Security Agreement dated as
------------------
of the Closing Date in the form of Exhibit I to be executed in favor of the
---------
Agent by each of the Credit Parties, as amended, modified, restated or
supplemented from time to time.
"Single Employer Plan" shall mean any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Solvent" or "Solvency" shall mean, with respect to any Person as of a
------- --------
particular date, that on such date (i) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and liabilities as
they mature in their ordinary course, taking into account the timing of and
amounts of cash to be received by such Person and the timing of and amounts of
cash to be payable on or in respect of debts and liabilities of such Person,
(iii) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's Property
would
26
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (iv) the fair value of the Property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person
and (v) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts and liabilities as they become absolute and matured. In
computing the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subordinated Note Indenture" shall mean the Indenture, dated as of October
---------------------------
7, 1997, by and among the Borrower, the subsidiary guarantors named therein and
SunTrust Bank, Central Florida, National Association, as trustee, as amended
supplemented or otherwise modified from time to time.
"Subordinated Notes" shall mean the 8.50% Senior Subordinated Notes Due
------------------
2007 issued by the Borrower pursuant to the Subordinated Note Indenture.
"Subsidiaries Guarantee Agreement" shall mean the guarantee agreement dated
--------------------------------
as of the Closing Date in the form of Exhibit J to be executed in favor of the
---------
Agent by the Subsidiary Guarantors, as amended, modified, restated or
supplemented from time to time.
"Subsidiary" shall mean, as to any Person, (a) any corporation more than
----------
50% of whose Capital Stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture,
limited liability company or other business entity in which such Person directly
or indirectly through Subsidiaries has more than 50% of the equity interests at
any time.
"Subsidiary Guarantors" shall mean each of the Domestic Subsidiaries and
---------------------
the Foreign Subsidiaries of the Borrower on the Closing Date which has executed
the Subsidiaries Guarantee Agreement and each Additional Subsidiary Guarantor
which may thereafter execute a Joinder Agreement, together with their successors
and permitted assigns, and "Subsidiary Guarantor" shall mean any one of them.
--------------------
"Taxes" shall have the meaning assigned to such term in Section 3.10.
-----
"Termination Date" shall mean February __, 2004.
----------------
"Total Voting Power" with respect to any Person on any date shall mean the
------------------
total number of votes which may be cast in the election of directors of such
Person at any meeting of stockholders of such Person if all securities entitled
to vote in the election of directors of such Person (on a fully diluted basis,
assuming the exercise, conversion or exchange of all rights, warrants, options
and securities outstanding on such date which are or may thereafter
27
become exercisable for, exchangeable for or convertible into, such voting
securities) were present and voted at such meeting (other than votes that may be
cast only upon the happening of a contingency).
"Type", with respect to a Loan, refers to whether such Loan is a Eurodollar
----
Loan or Base Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
---
"UCP" shall have the meaning assigned to such term in Section 2.2(h).
---
"Unused Revolving Committed Amount" shall mean, for any period, the amount
---------------------------------
by which (a) the then applicable Revolving Committed Amount exceeds (b) the
daily average sum for such period of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the aggregate principal amount of all
----
outstanding LOC Obligations.
"Upfront Fee" shall have the meaning assigned to such term in Section
-----------
3.5(a).
"Wholly Owned Subsidiary" of any Person shall mean any Subsidiary 100% of
-----------------------
whose Capital Stock (on a fully diluted basis) is at the time owned by such
Person directly or indirectly through other Wholly Owned Subsidiaries.
"Year 2000 Compliant" shall have the meaning assigned to such term in
-------------------
Section 5.29.
1.2 Computation of Time Periods. For purposes of computation of periods
---------------------------
of time hereunder, the word "from" shall mean "from and including" and the words
"to" and "until" each shall mean "to but excluding."
1.3 Accounting Terms. Except as otherwise expressly provided herein, all
----------------
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Agreement shall (except as otherwise expressly provided
herein) be made by application of GAAP applied on a basis consistent with the
most recent annual or quarterly financial statements delivered pursuant to
Section 6.1 (or, prior to the delivery of the first financial statements
pursuant to Section 6.1, consistent with the financial statements as at
September 30, 1998); provided, however, that if (i) the Borrower shall object to
-------- -------
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto after the Closing Date or (ii) the Agent or the Required Lenders
shall so object in writing within 90 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by the Borrower to the Lenders as to
which no such objection shall have been made. Further, the calculation of the
ratios and covenants contained in Section 7.19 shall be made on a Pro Forma
Basis taking into account any incurrence of Indebtedness, Asset Dispositions and
Permitted Acquisitions occurring during each fiscal quarter, if any.
28
1.4 Terms Generally. The definitions in Section 1.1 shall apply equally
---------------
to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". All
references herein to Sections, Exhibits and Schedules shall be deemed references
to Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Unless otherwise expressly provided herein, the word
"day" means a calendar day.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans. (a) Revolving Commitment. Subject to the terms and
--------------- --------------------
conditions hereof and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make available to the Borrower
such Lender's Revolving Commitment Percentage of revolving credit loans
requested by the Borrower in Dollars ("Revolving Loans") from time to time from
---------------
the Closing Date until the Termination Date, or such earlier date as the
Revolving Commitments shall have been terminated as provided herein for the
purposes hereinafter set forth; provided, however, that the sum of the aggregate
-------- -------
principal amount of outstanding Revolving Loans plus the aggregate amount of
----
outstanding LOC Obligations shall not at any time exceed ONE HUNDRED FORTY
MILLION DOLLARS ($140,000,000) (as such aggregate maximum amount may be reduced
from time to time as provided in Section 3.4, the "Revolving Committed Amount");
--------------------------
provided, further, with regard to each Lender individually, that such Lender's
-------- -------
outstanding Revolving Loans plus Participation Interests in outstanding LOC
----
Obligations shall not at any time exceed such Lender's Revolving Commitment
Percentage of the Revolving Committed Amount. Revolving Loans may consist of
Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance with the provisions
hereof; provided, however, that the Revolving Loans outstanding at any time
-------- -------
shall consist of no more than five (5) separate Eurodollar Loans. For purposes
hereof, Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date, although
borrowings of Eurodollar Loans may, in accordance with the provisions hereof, be
combined through extensions or conversions at the end of existing Interest
Periods to constitute a single new Eurodollar Loan with the same Interest
Period. Revolving Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Revolving Loan Borrowings.
-------------------------
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
-------------------
borrowing by written notice (or telephonic notice promptly confirmed in
writing) to the Agent not later than 10:00 A.M. (Charlotte, North Carolina
time) on the same Business Day of the requested borrowing in the case of
Base Rate Loans, and on the third Business Day prior to the date of the
requested borrowing in the case of Eurodollar
29
Loans. Each such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed and (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a combination thereof,
and if Eurodollar Loans are requested, the Interest Period(s) therefor. If
the Borrower shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one month
or (II) the Type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. Promptly upon
receipt of each Notice of Borrowing pursuant to this Section 2.1(b)(i), the
Agent shall notify each Lender of the contents thereof and each such
Lender's share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan that
---------------
comprises part of the Revolving Loans shall be in a minimum aggregate
principal amount (for the applicable Lenders, collectively) of $1,000,000
and integral multiples of $500,000 in excess thereof (or the then remaining
amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its Revolving Commitment
--------
Percentage of each Revolving Loan borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in Schedule
--------
1.1C, or in such other manner as the Agent may designate in writing, by
----
1:00 P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds immediately
available to the Agent. Such borrowing will then be made available to the
Borrower by the Agent by crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
---------
and payable in full on the Termination Date, unless accelerated sooner pursuant
to Section 8.2.
(d) Interest. Subject to the provisions of Section 3.1:
--------
(i) Base Rate Loans. During such periods as Revolving Loans shall
---------------
be comprised in whole or in part of Base Rate Loans, such Base Rate Loans
shall bear interest at a per annum rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Revolving Loans shall
----------------
be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans
shall bear interest at a per annum rate equal to the Adjusted Eurodollar
Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (and at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans made by each Lender
---------------
shall be
30
evidenced by a duly executed promissory note of the Borrower to such Lender
in substantially the form of Exhibit K and in a principal amount equal to
---------
such Lender's Revolving Commitment Percentage of the Revolving Committed
Amount.
2.2 Letter of Credit Subfacility. (a) Issuance. Subject to the terms
---------------------------- --------
and conditions hereof and of the LOC Documents, if any, and any other terms and
conditions which the Issuing Lender may reasonably require and in reliance upon
the representations and warranties set forth herein, the Issuing Lender agrees
to issue, and each Lender severally agrees to participate on the terms set forth
in this Section 2.2 in the issuance by the Issuing Lender of, standby and trade
Letters of Credit at sight and in Dollars from time to time from the Closing
Date until the Termination Date as the Borrower may request, in a form
acceptable to the Issuing Lender; provided, however, that (i) the LOC
-------- -------
Obligations outstanding shall not at any time exceed TWENTY MILLION DOLLARS
($20,000,000) (the "LOC Committed Amount") and (ii) the sum of the aggregate
--------------------
principal amount of outstanding Revolving Loans, plus the aggregate principal
----
amount of outstanding LOC Obligations shall not at any time exceed the Revolving
Committed Amount. No standby Letter of Credit shall (x) have an original expiry
date more than one year from the date of issuance or (y) as originally issued or
as extended, have an expiry date extending beyond the Termination Date. No
trade Letter of Credit shall (x) have an original expiry date more than 180 days
from the date of issuance or (y) as originally issued or extended, have an
expiry extending no more than 30 days prior to the Termination Date. Each
Letter of Credit shall comply with or relate to, as applicable, the related LOC
Documents.
(b) Notice and Reports. The request for the issuance of a Letter of Credit
------------------
shall be submitted by the Borrower to the Issuing Lender at least three (3)
Business Days prior to the requested date of issuance. The Issuing Lender will,
at least quarterly and more frequently upon request, disseminate to each of the
Lenders a detailed report specifying the Letters of Credit which are then issued
and outstanding and any activity with respect thereto which may have occurred
since the date of the most recent prior report, and including therein, among
other things, the beneficiary, the face amount and the expiry date, as well as
any payments or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Letter of Credit, shall
-------------
be deemed to have purchased without recourse from the Issuing Lender a
Participation Interest in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, in each case in an amount equal
to its Revolving Commitment Percentage of the obligations under such Letter of
Credit and shall absolutely, unconditionally and irrevocably assume and be
obligated to pay to the Issuing Lender and discharge when due its Revolving
Commitment Percentage of the obligations arising under such Letter of Credit.
Without limiting the scope and nature of each Lender's Participation Interest in
any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit, each such
Lender shall pay to the Issuing Lender its Revolving Commitment Percentage of
such unreimbursed drawing pursuant to subsection (d) below. The obligation of
each Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event
of Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of the
31
Borrower to reimburse the Issuing Lender under any Letter of Credit, together
with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit,
-------------
the Issuing Lender will promptly notify the Borrower. The Borrower promises to
reimburse the Issuing Lender on the day of drawing under any Letter of Credit
(either with the proceeds of a Revolving Loan obtained as provided in subsection
(e) below or with funds from other sources) in same day funds. Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower intends
to reimburse the Issuing Lender for such drawing from other sources of funds,
the Borrower shall be deemed to have requested that the Lenders make a Revolving
Loan as provided in subsection (e) below in the amount of the drawing on the
related Letter of Credit and the proceeds of such Loan will be used to reimburse
the Issuing Lender for such drawing. If the Borrower shall fail to reimburse the
Issuing Lender as provided hereinabove, the unreimbursed amount of such drawing
shall bear interest at a per annum rate equal to the Adjusted Base Rate plus 2%.
----
The Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including any defense based on any failure of
the Borrower or any other Credit Party to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit. The Issuing
Lender will promptly notify the other Lenders of the amount of any unreimbursed
drawing and each Lender shall promptly pay to the Agent for the account of the
Issuing Lender, in Dollars and in immediately available funds, the amount of
such Lender's Revolving Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M. (Charlotte,
North Carolina time) on a Business Day and otherwise such payment shall be made
at or before 12:00 Noon (Charlotte, North Carolina time) on the Business Day
next succeeding the day such notice is received. If such Lender does not pay
such amount to the Issuing Lender in full upon such request, such Lender shall,
on demand, pay to the Agent for the account of the Issuing Lender interest on
the unpaid amount during the period from the date of such drawing until such
Lender pays such amount to the Issuing Lender in full at a rate per annum equal
to, if paid within two (2) Business Days of the date that such Lender is
required to make payment of such amount pursuant to the preceding sentence, the
Federal Funds Rate and, if paid thereafter, the Base Rate. Each Lender's
obligation to make such payment to the Issuing Lender, and the right of the
Issuing Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever, shall be satisfied without
regard to the termination of this Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Lender, acquire a Participation Interest in an amount equal to such
payment (excluding the portion of such payment constituting interest owing to
the Issuing Lender) in the unreimbursed drawn portion of the related Letter of
Credit, in the interest on the LOC Obligations in respect thereof and the
related LOC Documents, and shall have a claim against the Borrower with respect
thereto.
32
(e) Repayment with Revolving Loans. On any day on which the Borrower shall
------------------------------
have requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Agent shall give notice to the
Lenders that a Revolving Loan has been requested or deemed requested by the
Borrower to be made in connection with a drawing under a Letter of Credit, in
which case a Revolving Loan advance comprised of Base Rate Loans (or Eurodollar
Loans to the extent the Borrower has complied with the procedures of Section
2.1(b)(i) with respect thereto) shall be immediately made to the Borrower by all
Lenders (notwithstanding any termination of the Commitments pursuant to Section
8.2) pro rata based on the respective Revolving Commitment Percentages of the
Lenders (determined before giving effect to any termination of the Commitments
pursuant to Section 8.2) and the proceeds thereof shall be paid directly to the
Issuing Lender for application to the related LOC Obligations. Each such Lender
hereby irrevocably agrees to make its Revolving Commitment Percentage of each
such Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure of any such
request or deemed request for a Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including as
a result of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower or any other Credit Party), then each such Lender hereby
agrees that it shall forthwith purchase (as of the date such borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Issuing
Lender such Participation Interests in the outstanding LOC Obligations as shall
be necessary to cause each such Lender to share in such LOC Obligations ratably
based upon the respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments pursuant
to Section 8.2), provided that at the time any purchase of Participation
--------
Interests pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Issuing Lender, to the extent not paid to the
Issuing Lender by the Borrower in accordance with the terms of subsection (d)
above, interest on the principal amount of Participation Interests purchased for
each day from and including the day upon which such borrowing would otherwise
have occurred to but excluding the date of payment for such Participation
Interests, at the rate equal to, if paid within two (2) Business Days of the
date as which the Revolving Loan advance was required, the Federal Funds Rate,
and, if paid thereafter, the Base Rate.
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
----------------------------------------------
anything to the contrary set forth in this Agreement, including Section 2.2(a),
a Letter of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary of the Borrower,
provided that notwithstanding such statement, the Borrower shall be the actual
--------
account party for all purposes of this Agreement for such Letter of Credit and
such statement shall not affect the Borrower's reimbursement obligations
hereunder
33
with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of Credit
------------------
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the Letters
-----------------------------
of Credit be subject to The Uniform Customs and Practices for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
---
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
(i) In addition to its other obligations under this Section 2.2,
the Borrower hereby agrees to pay, and protect, indemnify and save each
Lender harmless from and against, any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that such Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of such Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or governmental
authority (all such acts or omissions, herein called "Government Acts").
---------------
(ii) As between the Borrower and the Lenders (including the
Issuing Lender), the Borrower shall assume all risks of the acts, omissions
or misuse of any Letter of Credit by the beneficiary thereof. No Lender
(including the Issuing Lender) shall be responsible: (A) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part,
that may prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be written; (D) for any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under a Letter of
Credit or of the proceeds thereof; and (E) for any consequences arising
from causes beyond the control of such Lender, including any Government
Acts. None of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(iii) In furtherance and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Lender
(including the Issuing Lender) under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in good faith,
shall not put such Lender under any resulting liability to the
34
Borrower or any other Credit Party. It is the intention of the parties that
this Agreement shall be construed and applied to protect and indemnify each
Lender (including the Issuing Lender) against any and all risks involved in
the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower (on behalf of itself and each of the other Credit
Parties), including any and all Government Acts. No Lender (including the
Issuing Lender) shall, in any way, be liable for any failure by such Lender
or anyone else to pay any drawing under any Letter of Credit as a result of
any Government Acts or any other cause beyond the control of such Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. No act or omission of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the Lenders
(including the Issuing Lender) to enforce any right, power or benefit under
this Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify any
Lender (including the Issuing Lender) in respect of any liability incurred
by such Lender (A) arising out of the gross negligence or willful
misconduct of such Lender, as determined by a final, non-appealable order
of a court of competent jurisdiction, or (B) caused by such Lender's
failure to pay under any Letter of Credit after presentation to it of a
request strictly complying with the terms and conditions of such Letter of
Credit, as determined by a court of competent jurisdiction, unless such
payment is prohibited by any law, regulation, court order or decree or such
failure to pay is a result of any Government Act.
(j) Responsibility of Issuing Lender. It is expressly understood and
--------------------------------
agreed that the obligations of the Issuing Lender hereunder to the Lenders are
only those expressly set forth in this Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set forth in Section
4.2 have been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however, that nothing
-------- -------
set forth in this Section 2.2 shall be deemed to prejudice the right of any
Lender to recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this Section 2.2 in the event that it
is determined by a court of competent jurisdiction that the payment with respect
to a Letter of Credit constituted gross negligence or willful misconduct on the
part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between this
---------------------------
Agreement and any LOC Document (including any letter of credit application),
this Agreement shall control.
(l) Cash Collateral. In the event that the Borrower is required pursuant
---------------
to the terms of this Agreement or any other Credit Document to cash
collateralize any LOC Obligations, the Borrower shall deposit in an account with
the Agent an amount in cash equal to 100% of such LOC Obligations. Such deposit
shall be held by the Agent as collateral for the payment and performance of the
LOC Obligations. The Agent shall have exclusive
35
dominion and control, including the exclusive right of withdrawal, over such
account. The Agent will, at the request of the Borrower, invest amounts
deposited in such account in Cash Equivalents; provided, however, that (i)
--------
amounts deposited in such account in connection with any prepayment of
Eurodollar Loans shall be invested in Cash Equivalents that mature prior to the
last day of the applicable Interest Periods of the Eurodollar Loans to be
prepaid, (ii) the Agent shall not be required to make any investment that, in
its sole judgment, would require or cause the Agent to be in, or would result in
any, violation of any law, statute, rule or regulation, (iii) such Cash
Equivalents shall be subjected to a first priority perfected security interest
in favor of the Agent and (iv) if an Event of Default shall have occurred and be
continuing, the selection of such Cash Equivalents shall be in the sole
discretion of the Agent. The Borrower shall indemnify the Agent for any losses
relating to such investments in Cash Equivalents. Other than any interest or
profits earned on such investments, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Agent to reimburse the
Issuing Lender immediately for drawings under Letters of Credit and, if the
maturity of the Loans has been accelerated, to satisfy the LOC Obligations. If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 3.3(b)(i) and
(ii), such amount (to the extent not applied as aforesaid) shall be returned to
the Borrower upon demand; provided that, after giving effect to such return, (i)
--------
the sum of the aggregate amount of outstanding LOC Obligations plus the
----
aggregate principal amount of outstanding Revolving Loans would not exceed the
aggregate Revolving Committed Amount and (ii) no Default or Event of Default
shall have occurred and be continuing. The Borrower hereby pledges and assigns
to the Agent, for its benefit and the benefit of the Lenders, the cash
collateral account established hereunder (and all monies and investments held
therein) to secure the Credit Obligations.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate. Upon the occurrence, and during the continuance, of an
------------
Event of Default, the principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate equal to
(a) in the case of principal of any Loan, the rate applicable to such Loan
during such period pursuant to Section 2, plus 2.00%, (b) in the case of
----
interest on any Loan, the Adjusted Base Rate during such period, plus 2.00% and
----
(c) in the case of any other amount, the Adjusted Base Rate during such period,
plus 2.00%).
----
3.2 Extension and Conversion. Subject to the terms of Section 4.2, the
------------------------
Borrower shall have the option, on any Business Day, to extend existing Loans
into a subsequent permissible Interest Period or to convert Loans into Loans of
another type; provided, however, that (i) except pursuant to in Section 3.8,
-------- -------
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended,
and Base Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion,
(iii) Loans extended
36
as, or converted into, Eurodollar Loans shall be subject to the terms of the
definition of "Interest Period" set forth in Section 1.1 and shall be in such
minimum amounts as provided in Section 2.1(b)(ii), (iv) the total number of
Eurodollar Loans outstanding at any time shall be no greater than the maximum
number provided in Section 2.1(a) (it being understood that, for purposes
hereof, Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date) and (v) any
request for extension or conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of one month. Each such extension or conversion shall be effected by the
Borrower by giving a Notice of Extension/Conversion (or telephonic notice
promptly confirmed in writing) to the office of the Agent specified in specified
in Schedule 1.1C, or at such other office as the Agent may designate in writing,
-------------
prior to 10:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in
the case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on
the third Business Day prior to, in the case of the extension of a Eurodollar
Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan, the date of
the proposed extension or conversion, specifying the date of the proposed
extension or conversion, the Loans to be so extended or converted, the types of
Loans into which such Loans are to be converted and, if appropriate, the
applicable Interest Periods with respect thereto. Each request for extension or
conversion shall be irrevocable and shall constitute a representation and
warranty by the Borrower of the matters specified in subsections (b), (c), (d),
(e) and (f) of Section 4.2. In the event the Borrower fails to request an
extension or conversion of any Eurodollar Loan in accordance with this Section
3.2 or any such requested conversion or extension is not permitted by this
Agreement, then such Eurodollar Loan shall be automatically converted into a
Base Rate Loan at the end of the Interest Period applicable thereto. The Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion of any Loan. Each extension or conversion shall be
effected by each Lender and the Agent by recording for the account of such
Lender the new Loan of such Lender resulting from such extension or conversion
and reducing the Loan (or portion thereof) of such Lender being extended or
converted by an equivalent principal amount. Accrued interest on a Loan (or
portion thereof) being extended or converted shall be paid by the Borrower (A)
with respect to any Base Rate Loan being converted to a Eurodollar Loan, on the
last day of the first fiscal quarter of the Borrower ending on or after the date
of conversion and (B) otherwise, on the date of extension or conversion.
3.3 Prepayments. (a) Voluntary Prepayments. The Borrower shall have the
----------- ---------------------
right to prepay Loans in whole or in part from time to time, subject to Section
3.11 but otherwise without premium or penalty; provided, however, that (i) each
-------- -------
partial prepayment of Loans shall be in a minimum principal amount of $1,000,000
and integral multiples of $500,000 in excess thereof and (ii) the Borrower shall
have given prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Agent, in the case of any
Revolving Loan which is a Base Rate Loan, by 10:00 A.M. (Charlotte, North
Carolina time), on the date of prepayment and, in the case of any other Loan, by
10:00 A.M. (Charlotte, North Carolina time), at least three (3) Business Days
prior to the date of prepayment. Each notice of prepayment shall specify the
prepayment date, the principal amount to be prepaid, whether the Loan to be
prepaid is a Eurodollar Loan or Base Rate Loan and, in the case of a Eurodollar
Loan, the Interest Period of such Loan. Each notice of prepayment shall be
irrevocable and shall commit the Borrower to prepay such Loan by the
37
amount stated therein on the date stated therein. Subject to the foregoing
terms, amounts prepaid under this Section 3.3(a) shall be applied as the
Borrower may elect; provided that if the Borrower fails to specify the
--------
application of a voluntary prepayment then such prepayment shall be applied
first to Base Rate Loans and then to Eurodollar Loans in direct order of
Interest Period maturities. All prepayments under this Section 3.3(a) shall be
subject to Section 3.11. All prepayments under this Section 3.3(a) shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of payment.
(b) Mandatory Prepayments.
---------------------
(i) Revolving Committed Amount. If at any time, the sum of the
--------------------------
aggregate principal amount of outstanding Revolving Loans plus the
----
aggregate amount of the outstanding LOC Obligations shall exceed the
Revolving Committed Amount at such time, the Borrower immediately shall
prepay the Revolving Loans and/or cash collateralize or pay the LOC
Obligations, in an aggregate amount sufficient to eliminate such excess.
(ii) Permitted Receivables Securitization. Promptly upon receipt by
------------------------------------
any Consolidated Party of proceeds from any Permitted Receivables
Securitization, the Borrower shall prepay the Loans and/or cash
collateralize the LOC Obligations in an aggregate amount equal to 100% of
the initial cash proceeds of such Permitted Receivables Securitization.
(iii) Application of Mandatory Prepayments. All amounts required to
------------------------------------
be paid pursuant to this Section 3.3(b) shall be applied to Revolving
Credit Facility Obligations.
(iv) Prepayment Accounts. Amounts to be applied as provided in
-------------------
subsection (ii) and (iii) above to the prepayment of Loans shall be applied
first to reduce outstanding Base Rate Loans. Any amounts remaining after
each such application shall, at the option of the Borrower, be applied to
prepay Eurodollar Loans immediately and/or shall be deposited in a separate
Prepayment Account (as defined below). The Agent shall apply any cash
deposited in the Prepayment Account for any Eurodollar Loans to prepay such
Loans on the last day of their respective Interest Periods (or, at the
direction of the Borrower, on any earlier date) until all outstanding
Eurodollar Loans have been prepaid or until all the allocable cash on
deposit in the Prepayment Account for such Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" for any
------------------
Eurodollar Loans shall mean an account established by the Borrower with the
Agent and over which the Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal for application in accordance
with this subsection. The Agent will, at the request of the Borrower,
invest amounts on deposit in the Prepayment Account for Eurodollar Loans in
Cash Equivalents that mature prior to the last day of the applicable
Interest Periods of Eurodollar Loans to be prepaid; provided, however, that
-------- -------
(i) the Agent shall not be required to make any investment that, in its
sole judgment, would require or cause the Agent to be in, or would result
in any, violation of any law, statute, rule or regulation, (ii) such Cash
Equivalents shall be subjected to a first priority perfected security
interest in favor of
38
the Agent and (iii) if an Event of Default shall have occurred and be
continuing, the selection of such Cash Equivalents shall be in the sole
discretion of the Agent. The Borrower shall indemnify the Agent for any
losses relating to such investments in Cash Equivalents so that the amount
available to prepay Eurodollar Loans on the last day of the applicable
Interest Periods is not less than the amount that would have been available
had no investments been made pursuant thereto except for any losses arising
out of the gross negligence or willful misconduct of the Agent. Other than
any interest or profits earned on such investments, the Prepayment Accounts
shall not bear interest. Interest or profits, if any, on the investments in
any Prepayment Account shall accumulate in such Prepayment Account. If the
maturity of the Loans has been accelerated pursuant to Section 8.2, the
Agent may, in its sole discretion, apply all amounts on deposit in the
Prepayment Account for any Eurodollar Loans to satisfy any of the Credit
Obligations related to such Eurodollar Loans. The Borrower hereby pledges
and assigns to the Agent, for its benefit and the benefit of the Lenders,
each Prepayment Account established hereunder to secure the Credit
Obligations.
(v) Notice. The Borrower shall give to the Agent and the Lenders at
------
least five (5) Business Days' prior written or telecopy notice of each and
every event or occurrence requiring a prepayment under Section 3.3(b)(ii)
including the amount of Net Cash Proceeds expected to be received therefrom
and the expected schedule for receiving such proceeds; provided, however,
-------- -------
that in the case of any prepayment event consisting of a Casualty or
Condemnation, the Borrower shall give such notice within five (5) Business
Days after the occurrence of such event.
3.4 Termination and Reduction of Commitments. (a) Voluntary Reductions.
---------------------------------------- --------------------
The Borrower may from time to time permanently reduce or terminate the Revolving
Committed Amount in whole or in part (in minimum aggregate amounts of $1,000,000
or in integral multiples of $500,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount)) upon five
(5) Business Days' prior written or telecopy notice to the Agent; provided,
--------
however, no such termination or reduction shall be made which would cause the
-------
sum at any time of (i) the aggregate principal amount of outstanding Revolving
Loans, plus (ii) the aggregate amount of outstanding LOC Obligations to exceed
----
the Revolving Committed Amount as so terminated or reduced unless, concurrently
with such termination or reduction, the Revolving Loans are repaid (and, after
the Revolving Loans have been paid in full, the LOC Obligations are cash
collateralized) to the extent necessary to eliminate such excess. The Agent
shall promptly notify each Lender of the receipt by the Agent of any notice from
the Borrower pursuant to this Section 3.4(a).
(b) Termination. The Revolving Commitments of the Lenders and the LOC
-----------
Commitment of the Issuing Lender shall automatically terminate on the
Termination Date.
(c) General. The Borrower shall pay to the Agent for the account of the
-------
Lenders in accordance with the terms of Section 3.5(b), on the date of each
termination or reduction of the Revolving Committed Amount, the Commitment Fee
accrued through the date of such termination or reduction on the amount of the
Revolving Committed Amount so terminated or reduced.
39
3.5 Fees. (a) Upfront Fees. The Borrower agrees to pay to the Agent in
---- ------------
immediately available funds on or before the Closing Date an upfront fee (the
"Upfront Fee") in the amount provided in the Agent's Fee Letter. The Upfront
-----------
Fee shall be allocated among the Lenders in the manner previously described by
the Agent to the other Lenders.
(b) Commitment Fee. In consideration of the Revolving Commitments of the
--------------
Lenders hereunder, the Borrower agrees to pay to the Agent for the account of
each Lender a fee (the "Commitment Fee") on such Lender's Revolving Commitment
--------------
Percentage of the Unused Revolving Committed Amount, computed at a per annum
rate for each day during the applicable Commitment Fee Calculation Period at a
rate equal to the Applicable Percentage in effect from time to time. The
Commitment Fee shall commence to accrue on the Closing Date and shall be due and
payable in arrears on the last business day of each March, June, September and
December (and any date that the Revolving Committed Amount is reduced as
provided in Section 3.4(a) and the Termination Date) for the immediately
preceding quarter or portion thereof (each such quarter or portion thereof being
herein referred to as an "Commitment Fee Calculation Period"), beginning with
---------------------------------
the first of such dates to occur after the Closing Date.
(c) Letter of Credit Fees.
---------------------
(i) Standby and Trade Letter of Credit Issuance Fee. In consideration
-----------------------------------------------
of the issuance of standby Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a fee (the
"Letter of Credit Fee") on such Lender's Revolving Commitment Percentage of
--------------------
the daily maximum amount available to be drawn under each such Letter of
Credit computed at a per annum rate for each day from the date of issuance
to the earlier of the date of drawing or the date of expiration equal to
the Applicable Percentage. The Letter of Credit Fee will be payable
quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or portion
thereof), beginning with the first of such dates to occur after the Closing
Date.
(ii) Issuing Lender Fees. In addition to the Letter of Credit Fee
-------------------
payable pursuant to clause (i) above, the Borrower promises to pay to the
Issuing Lender for its own account without sharing by the other Lenders the
letter of credit fronting and negotiation fees agreed to by the Borrower
and the Issuing Lender from time to time and the customary charges from
time to time of the Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and drawings
under, such Letters of Credit (collectively, the "Issuing Lender Fees").
-------------------
(d) Agent's Fees. The Borrower agrees to pay to each of the Agent and NMS,
------------
for its own account, any other fees payable to such party by the Borrower
pursuant to the Agent's Fee Letter.
3.6 Increased Cost and Reduced Return. (a) If, after the date hereof,
---------------------------------
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or
40
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank or comparable
agency:
(i) shall subject such Lender (or its Applicable Lending Office) to
any tax, duty or other charge with respect to any Fixed Rate Loans, any of
its Notes or its obligation to make Fixed Rate Loans, or change the basis
of taxation of any amounts payable to such Lender (or its Applicable
Lending Office) under this Agreement or any of its Notes in respect of any
Fixed Rate Loans (other than taxes imposed on the overall net income of
such Lender by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify or deem applicable any reserve, special
deposit, assessment, compulsory loan or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of, such Lender
(or its Applicable Lending Office), including any of the Commitments of
such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office)
or on the London interbank market any other condition affecting this
Agreement or any of its Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Extending, or
maintaining any Fixed Rate Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or any of
its Notes with respect to any Fixed Rate Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.6, the Borrower may, by notice to such Lender
(with a copy to the Agent), suspend the obligation of such Lender to make or
Extend Loans of the Type with respect to which such compensation is requested,
or to Convert Loans of any other Type into Loans of such Type, until the event
or condition giving rise to such request ceases to be in effect (in which case
the provisions of Section 3.9 shall be applicable); provided that such
--------
suspension shall not affect the right of such Lender to receive the compensation
so requested.
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which
41
such Lender or such corporation could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 3.6 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 3.6 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
3.7 Limitation on Types of Loans. If on or prior to the first day of any
----------------------------
Interest Period for any Eurodollar Loan:
(a) the Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding Eurodollar
Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant amounts or periods, and so long as such condition remains in effect,
the Lenders shall be under no obligation to make additional Eurodollar Loans,
Extend Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans and
the Borrower shall, on the last day(s) of the then current Interest Period(s)
for the outstanding Eurodollar Loans, either prepay such Loans or Convert such
Loans into Base Rate Loans in accordance with the terms of this Agreement.
3.8 Illegality. Notwithstanding any other provision of this Agreement, in
----------
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Loans hereunder, then such Lender
shall promptly notify the Borrower thereof and such Lender's obligation to make
or Extend Eurodollar Loans and to Convert Base Rate Loans into Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain and
fund Eurodollar Loans (in which case the provisions of Section 3.9 shall be
applicable).
3.9 Treatment of Affected Loans. If the obligation of any Lender to make
---------------------------
Eurodollar Loans or to Extend, or to Convert Base Rate Loans into, Eurodollar
Loans shall be suspended pursuant to Section 3.6 or 3.8 hereof (Loans of such
Type being herein called "Affected Loans" and such Type being herein called the
--------------
"Affected Type"), such Lender's
-------------
42
Affected Loans shall be automatically Converted into Base Rate Loans on the last
day(s) of the then current Interest Period(s) for Affected Loans (or, in the
case of a Conversion required by Section 3.8 hereof, on such earlier date as
such Lender may specify to the Borrower with a copy to the Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 3.6 or 3.8 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Extended by such Lender
as Loans of the Affected Type shall be made or Extended instead as Base
Rate Loans, and all Loans of such Lender that would otherwise be Converted
into Loans of the Affected Type shall be Converted instead into (or shall
remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.6 or 3.8 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 3.9 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Commitments.
3.10 Taxes. (a) Any and all payments by the Borrower to or for the
-----
account of any Lender or the Agent hereunder or under any other Credit Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
---------
the Agent, taxes imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws (or any political subdivision thereof) of which
such Lender (or its Applicable Lending Office) or the Agent (as the case may be)
is qualified or organized (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
-----
or in respect of any sum payable under this Agreement or any other Credit
Document to any Lender or the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.10) such Lender or
the Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent, at the office of the Agent specified in Schedule 1.1C, the
-------------
original or a certified copy of a receipt evidencing payment thereof.
43
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies (including mortgage recording taxes and similar taxes) which
arise from any payment made under this Agreement or any other Credit Document or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any other Credit Document (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this Section 3.10) paid
by such Lender or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 3.10(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 3.10(a) or
3.10(b) with respect to Taxes imposed by the United States; provided, however,
-------- -------
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.10, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
44
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
3.11 Compensation. Upon the request of any Lender, the Borrower shall pay
------------
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost or expense incurred
by it as a result of:
(a) any payment, prepayment, or Extension of a Fixed Rate Loan for
any reason (including the acceleration of the Loans pursuant to Section
8.2) on a date other than the last day of the Interest Period for such
Loan; or
(b) any failure by the Borrower for any reason (including the failure
of any condition precedent specified in Section 4 to be satisfied) to
borrow, Convert, Extend or prepay a Fixed Rate Loan on the date for such
borrowing, Conversion, Extension or prepayment specified in the relevant
notice of borrowing, prepayment, Extension or Conversion under this
Agreement.
3.12 Pro Rata Treatment. Except to the extent otherwise provided herein:
------------------
(a) Loans. Each Loan, each payment or prepayment of principal of any
-----
Loan or reimbursement obligations arising from drawings under Letters of
Credit, each payment of interest on the Loans or reimbursement obligations
arising from drawings under Letters of Credit, each payment of Commitment
Fees, each payment of the Letter of Credit Fee, each reduction of the
Revolving Committed Amount and each Conversion or Extension of any Loan,
shall be allocated pro rata among the Lenders in accordance with the
respective principal amounts of their outstanding Loans and Participation
Interests.
(b) Advances. No Lender shall be responsible for the failure or delay
--------
by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
-------- -------
fulfill its obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Agent shall have been notified by any
Lender prior to the date of any requested borrowing that such Lender does
not intend to make available to the Agent its ratable share of such
borrowing to be made on such date, the Agent may assume that such Lender
has made such amount available to the Agent on the date of such borrowing,
and the Agent in reliance upon such assumption, may (in its sole discretion
but without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Agent, the Agent shall be able to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent
will promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Agent. The Agent shall also be entitled
to recover from the Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to the
date such corresponding amount is recovered by the
45
Agent at a per annum rate equal to (i) from the Borrower, the applicable
rate for the applicable borrowing pursuant to the Notice of Borrowing and
(ii) from a Lender, if paid within two (2) Business Days of the date such
corresponding amount was made available by the Agent to the Borrower, the
Federal Funds Rate and, if paid thereafter, the Base Rate.
3.13 Sharing of Payments. The Lenders agree among themselves that, in the
-------------------
event that any Lender shall obtain payment in respect of any Loan, LOC
Obligation or any other obligation owing to such Lender under this Agreement
through the exercise of a right of setoff, banker's lien or counterclaim, or
pursuant to a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means (whether voluntarily or
involuntarily by set-off or otherwise), in excess of its pro rata share of such
payment as provided for in this Agreement, such Lender shall promptly purchase
from the other Lenders a Participation Interest in such Loan, LOC Obligation or
other obligation in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a Participation Interest theretofore sold,
return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a Participation Interest pursuant to this Section 3.13 may, to
the fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such Participation
Interest as fully as if such Lender were a holder of such Loan, LOC Obligations
or other obligation in the amount of such Participation Interest. Except as
otherwise expressly provided in this Agreement, if any Lender or the Agent shall
fail to remit to the Agent or any other Lender an amount payable by such Lender
or the Agent to the Agent or such other Lender pursuant to this Agreement on the
date when such amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the date such
amount is paid to the Agent or such other Lender at a rate per annum equal to
the Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.13 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders under this Section 3.13 to share in the benefits of
any recovery on such secured claim.
3.14 Payments, Computations, Etc. (a) Except as otherwise specifically
---------------------------
provided herein, all payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at the Agent's office specified in Schedule 1.1C not
-------------
later than 2:00 P.M. (Charlotte, North Carolina time) on the date when due.
Payments received after such time shall be deemed to have been received on the
next succeeding Business Day. The Agent may (but shall not be obligated to)
debit the
46
amount of any such payment which is not made by such time to any ordinary
deposit account of the Borrower maintained with the Agent (with notice to the
Borrower). The Borrower shall, at the time it makes any payment under this
Agreement, specify to the Agent the Loans, LOC Obligations, Fees, interest or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application
would be inconsistent with the terms hereof, the Agent shall distribute such
payment to the Lenders in such manner as the Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.12(a)). The Agent will distribute such payments to
such Lenders, if any such payment is received prior to 12:00 Noon (Charlotte,
North Carolina time) on a Business Day in like funds as received prior to the
end of such Business Day and otherwise the Agent will distribute such payment to
such Lenders on the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and Fees for the period of such extension), except that in
the case of Eurodollar Loans, if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the next preceding Business Day. Except as expressly provided otherwise
herein, all computations of interest and Fees shall be made on the basis of
actual number of days elapsed over a year of 360 days. Interest shall accrue
from and include the date of borrowing, but shall exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
---------------------------------------------
other provisions of this Agreement to the contrary, after the occurrence and
during the continuance of an Event of Default, all amounts collected or received
by the Agent or any other Lender on account of the Credit Obligations or any
other amounts outstanding under any of the Credit Documents or in respect of the
Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees) of the Agent in connection
with enforcing the rights of the Secured Parties under the Credit Documents
and any protective advances made by the Agent with respect to the
Collateral under or pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees) of each of the Lenders in
connection with enforcing its rights under the Credit Documents or
otherwise with respect to the Credit Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Obligations consisting of
accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the
Credit Obligations (including the payment or cash collateralization of the
outstanding LOC Obligations);
47
SIXTH, to all other Credit Obligations and other obligations which
shall have become due and payable under the Credit Documents or otherwise
and not repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
Participation Interest in LOC Obligations held by such Lender bears to the
aggregate amount of the then outstanding Loans and Participation Interest in
LOC Obligations) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent that any amounts
available for distribution pursuant to clause "FIFTH" above are attributable to
the issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Agent in a cash collateral account pursuant to Section
2.2(l) and applied (A) first, to reimburse the Issuing Lender from time to time
for any drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FIFTH" and "SIXTH" above in the manner provided in this
Section 3.14(b). Notwithstanding the foregoing provisions of this Section
3.14(b), (I) amounts on deposit in a Prepayment Account for any Loans upon the
occurrence of any such Event of Default shall be applied, first, to pay such
Loans and, second, after all such Loans have been paid in full, to the other
Credit Obligations in the manner provided in this Section 3.14(b) and (II)
amounts on deposit in a cash collateral account pursuant to Section 2.2(l) upon
the occurrence of any such Event of Default shall be applied, first, to
reimburse the Issuing Lender from time to time for any drawings under any
Letters of Credit and, second, following the expiration of all Letters of
Credit, to the other Credit Obligations in the manner provided in this Section
3.14(b).
3.15 Evidence of Debt. (a) Each Lender shall maintain an account or
----------------
accounts evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 10.3(c), and
a subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable to each Lender hereunder and (iii) the amount of any sum
received by the Agent hereunder from or for the account of the Borrower and each
Lender's share thereof. The Agent will make reasonable efforts to maintain the
accuracy of the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant
48
to subsection (b) of this Section 3.15 (and, if consistent with the entries of
the Agent, subsection (a)) shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
-------- -------
that the failure of any Lender or the Agent to maintain any such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay the Loans made by such
Lender in accordance with the terms hereof.
3.16 Assignment of Commitments Under Certain Circumstances. In the event
-----------------------------------------------------
(a) any Lender requests compensation pursuant to Section 3.6, (b) any Lender
delivers a notice described in Section 3.8 or (c) the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority on account
of any Lender pursuant to Section 3.10, the Borrower may, at its sole expense
and effort (including with respect to the processing and recordation fee
referred to in Section 10.3), upon notice to such Lender and the Agent, require
such Lender to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in Section 10.3), all of its interests,
rights and obligations under this Agreement to an Eligible Assignee that shall
assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that (A) such assignment shall not
--------
conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (B) no Event of Default shall have
occurred and be continuing and (C) the Borrower or such assignee shall have paid
to the Lender in immediately available funds an amount equal to the sum of 100%
of the principal of and interest accrued to the date of such payment on the
outstanding Loans of such Lender, respectively, plus all Fees and other amounts
accrued for the account of such Lender hereunder (including any amounts under
Section 3.6, 3.10 and Section 3.11); provided further that if prior to any such
-------- -------
assignment the circumstances or event that resulted in such Lender's request or
notice under Section 3.6 or 3.8 or demand for additional amounts under Section
3.10, as the case may be, shall cease to exist or become inapplicable for any
reason or if such Lender shall waive its rights in respect of such circumstances
or event under Section 3.6, 3.8 or 3.10, as the case may be, then such Lender
shall not thereafter be required to make such assignment hereunder.
SECTION 4
CONDITIONS
4.1 Closing Conditions. The obligations of the Lenders to make the
------------------
initial Loans under this Agreement shall be subject to satisfaction of the
following conditions (in form and substance acceptable to the Lenders):
(a) Executed Credit Documents. The Agent shall have received duly
-------------------------
executed copies of (i) this Agreement; (ii) the Notes; (iii) the Collateral
Documents and (iv) all other Credit Documents, each in form and substance
acceptable to the Lenders in their sole discretion.
(b) Corporate Documents. The Agent shall have received the following:
-------------------
49
(i) Charter Documents. Copies of the articles or certificates
-----------------
of incorporation or other charter documents of each Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation and certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the
Closing Date.
(ii) Bylaws. A copy of the bylaws of each Credit Party
------
certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of
-----------
Directors of each Credit Party approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
therein and authorizing the execution, delivery and performance
thereof, certified by a secretary or assistant secretary of such
Credit Party to be true and correct and in full force and effect as of
the Closing Date.
(iv) Good Standing. Copies of (A) certificates of good
-------------
standing, existence or the equivalent with respect to each Credit
Party certified as of a recent date by the appropriate Governmental
Authority of its state or other jurisdiction of incorporation and each
other jurisdiction in which the failure to be qualified to do business
and in good standing could reasonably be expected to have a Material
Adverse Effect and (B) to the extent available, a certificate
indicating payment of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing authority of its
state or other jurisdiction of incorporation and each other
jurisdiction referred to in clause (A) above.
(v) Incumbency. A certificate of each Credit Party as to the
----------
incumbency and specimen signature of each officer executing any Credit
Document or any other document delivered in connection herewith on
behalf of such Credit Party, certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the
Closing Date.
(c) Financial Statements. The Agent and the Lenders shall have
--------------------
received and, in each case, be satisfied with (i) the consolidated
financial statements of the Borrower and its Subsidiaries, including
balance sheets as of, and income statements and cash flow statements for
the fiscal years ended on, March 29, 1996, March 28, 1997 and April 3,
1998, audited by independent public accountants of recognized national
standing and prepared in conformity with GAAP, (ii) the consolidated and
consolidating unaudited financial statements of the Borrower and its
Subsidiaries, including balance sheets as of, and income statements and
cash flow statements for the fiscal quarter ended on, September 30, 1998,
(iii) quarterly working capital detail for the twelve (12) months prior to
the Closing Date and first projected year after the Closing Date, (iv)
projections of the Borrower and its Subsidiaries for each 12-month period
through the end of fiscal year 2001 of the Borrower and (v) such other
50
information relating to the Borrower and its Subsidiaries as the Agent may
reasonably require in connection with the structuring and syndication of
credit facilities of the type described herein.
(d) Opinions of Counsel. The Agent shall have received, in each case
-------------------
dated as of the Closing Date:
(i) a legal opinion of Xxxxxx & Bird LLP, special counsel for
the Credit Parties, in substantially the form of Exhibit L-1;
-----------
(ii) a legal opinion of special local counsel for each Credit
Party incorporated in the State of Florida, in substantially the form
of Exhibit L-2; and
-----------
(iii) a legal opinion of special local counsel for the Credit
Parties for the State of Florida in which any Collateral is located,
in substantially the form of Exhibit L-3.
-----------
(e) Environmental Reports. The Agent shall have received in form and
---------------------
substance satisfactory to it all currently available environmental
assessment reports and related documents of a recent date with respect to
all material real property owned or leased by any Consolidated Party.
(f) Personal Property Collateral. The Agent shall have received:
----------------------------
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit Party and
each jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect the Agent's security
interest in the Collateral, copies of the financing statements on file
in such jurisdictions and evidence that no Liens exist other than
Permitted Liens;
(ii) duly executed financing statements (Form UCC-1) for each
appropriate jurisdiction as is necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the
Collateral;
(iii) appropriate duly executed termination statements (Form
UCC-3) signed by all Persons disclosed as secured parties in the
jurisdictions referred to in clause (i) above in form for filing under
the Uniform Commercial Code of such jurisdictions, except that no
termination statement shall be required as to any Permitted Liens;
(iv) searches of ownership of Intellectual Property in the
appropriate governmental offices;
(v) all stock certificates evidencing the Capital Stock pledged
to the
51
Agent pursuant to the Security Agreement, together with duly executed
in blank undated stock powers attached thereto (unless, with respect
to the pledged Capital Stock of any Foreign Subsidiary, such stock
powers are deemed unnecessary by the Agent in its reasonable
discretion under the law of the jurisdiction of incorporation of such
Person);
(vi) such patent, trademark and copyright filings as requested
by the Agent in order to perfect the Agent's security interest in the
Collateral;
(vii) all instruments and chattel paper in the possession of
any of the Credit Parties, together with such allonges or assignments
as may be necessary or appropriate to perfect the Agent's security
interest in the Collateral;
(viii) a Depository Bank Agreement from NationsBank and each
other bank or depository institution where any Credit Party maintains
a deposit account (other than a Deposit Account);
(ix) in the case of each lease of material personal property
under which any Credit Party is lessee, such estoppel letters,
consents and waivers from the lessors of such personal property as may
be required by the Agent, which instruments shall be in form and
substance satisfactory to the Agent; and
(x) duly executed consents as are necessary, in the Agent's
sole discretion, to perfect the security interest of the Secured
Parties in the Collateral.
(g) Priority of Liens. The Agent, on behalf of the Secured Parties,
-----------------
shall hold a perfected, first priority Lien, subject to no other Liens
other than Permitted Liens, on all Collateral.
(h) Evidence of Insurance. The Agent shall have received (i) a report
---------------------
from the Borrower's independent insurance consultant, in form and substance
satisfactory to the Agent, to the effect that insurance satisfying the
requirements set forth in the Credit Documents is in effect and (ii)
satisfactory evidence of such insurance and the endorsement thereof in
accordance with the Credit Documents, including a "standard" or "New York"
lender's loss payable endorsement in the name of the Agent on Accord Form
27.
(i) Consents and Approvals. The Borrower and the other Credit Parties
----------------------
shall have obtained all governmental, shareholder and third party consents
and approvals necessary or, in the opinion of the Agent, desirable in
connection with the transactions contemplated by the execution, delivery
and performance of this Agreement and the other Credit Documents (including
the exercise of remedies under the Collateral Documents) the other related
financings and transactions contemplated hereby and the continuing
operations of the Borrower and its Subsidiaries following the Closing Date,
and all applicable waiting periods (including any applicable waiting
52
period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976)
shall have expired, in each case, without any action being taken by any
Governmental Authority that could restrain, prevent or impose any material
adverse condition on the Consolidated Parties taken as a whole or such
transactions or that could seek or threaten any of the foregoing, and no
law or regulation shall be applicable which in the judgment of the Agent
could have such effect.
(j) Material Adverse Effect. From April 3, 1998 to the Closing Date,
-----------------------
nothing shall have occurred (and neither the Lenders nor the Agent shall
have become aware of any facts or circumstances not previously known) which
has, or could reasonably be expected to have, a Material Adverse Effect.
(k) Litigation. There shall not exist any order, decree, judgment,
----------
ruling or injunction or any pending or threatened action, suit,
investigation or proceeding that purports to affect the transactions
contemplated by the Credit Facilities or the other related financings or
that could reasonably be expected to have a Material Adverse Effect.
(l) Other Indebtedness. The Consolidated Parties shall have no
------------------
material liabilities (actual or contingent) or Preferred Stock, except (i)
as disclosed in the most recent interim balance sheet referred to in
Section 5.1(a), (ii) for items disclosed in Schedule 5.1, (iii) for
------------
accounts payable incurred in the ordinary course of business consistent
with past practice since the date of the most recent interim balance sheet
referred to in Section 5.1(a), (iv) Indebtedness under the Credit Documents
and (v) Indebtedness set forth on Schedule 7.1.
------------
(m) Change in Market. There shall not exist any material disruption
----------------
of, or a material adverse change in, the market for syndicated bank credit
facilities or financial, banking or capital market conditions.
(n) Fees and Expenses. The Credit Parties shall have paid all fees
-----------------
and expenses owed by them to the Lenders, the Agent and NMS, including
payment to the Agent and NMS of the fees and reimbursement of the expenses
as set forth in the Agent's Fee Letter.
(o) Officer's Certificates. The Agent shall have received a
----------------------
certificate or certificates executed by an executive officer of the
Borrower, dated as of the Closing Date, certifying that (i) each
Consolidated Party is in compliance with all existing financial
obligations, (ii) the conditions set forth in subsections 4.1 (g), (i),
(j), (k), (l) and (n) shall have been satisfied, and (iii) immediately
after giving effect to the execution and delivery of this Agreement and,
the other Credit Documents and the consummation of all the transactions
contemplated therein to occur on the Closing Date, (A) each of the Credit
Parties is Solvent, (B) no Default or Event of Default exists, (C) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects and (D) the Credit
Parties are in compliance on a Pro Forma Basis with each of the financial
covenants set forth in
53
Section 7.19 as of the last day of the most recent fiscal quarter of the
Borrower (as if the opening levels applicable to such covenants were in
effect on such day).
(p) Other. The Lenders shall have received such other documents,
-----
instruments, agreements or information as reasonably requested by any
Lender, including information regarding litigation, investigations and
other proceedings, compliance with applicable laws, regulations and consent
orders, tax matters, accounting matters, labor agreements, pension
liabilities (actual or contingent) and other employee benefits, and other
employee-related matters, insurance coverage, real estate leases, material
contracts and relationships, debt agreements, transactions with Affiliates
and former Affiliates, property ownership, Capital Leases, trademarks,
other proprietary rights and related licenses, capital stock, options and
warrants, and contingent liabilities of the Consolidated Parties.
(q) The Agent shall have received and be satisfied with the form and
content of currently available asset appraisal reports with respect to the
real and personal property owned by the Consolidated Parties.
(r) The Agent shall have received and be satisfied with all currently
available business audits of the Consolidated Parties, including a field
examination of the accounts receivable, inventory, payables, controls and
systems of the Borrower and its subsidiaries.
(s) Real Property Collateral. As to each parcel of real property
------------------------
leased by the Borrower or any of its Subsidiaries at which inventory, the
fair market value of which exceeds $2,000,000, is located, the Borrower
shall obtain waivers from the landlords of all such real estate, in form as
shall be reasonably acceptable to the Agent.
4.2 Conditions to all Extensions of Credit. The obligations of each
--------------------------------------
Lender to make any Loan (including the initial Loans), Convert any existing Loan
into a Loan of another Type or Extend any existing Loan into a subsequent
Interest Period and of the Issuing Lender to issue or extend any Letter of
Credit are subject to satisfaction on the date such Loan is made, Converted or
Extended or the date such Letter of Credit is issued or extended, as applicable,
to satisfaction of the following conditions:
(a) The Borrower shall have delivered (i) in the case of any
Revolving Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion or (ii) in the case of any Letter of Credit, the
Issuing Lender shall have received an appropriate request for issuance or
extension in accordance with the provisions of Section 2.2(b);
(b) The representations and warranties set forth in Section 5 and in
each of the other Credit Documents shall be true and correct in all
material respects as of such date (except for those which expressly relate
to an earlier date, in which case such representations and warranties shall
be true and correct in all material respects on and as of such earlier
date);
54
(c) There shall not have been commenced against any Credit Party an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of
its affairs, which involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded;
(d) No Default or Event of Default shall exist and be continuing
either prior to the making, Conversion or Extension of such Loan or the
issuance or extension of such Letter of Credit or after giving effect
thereto;
(e) No Material Adverse Change shall have occurred or become known
since the delivery of its most recent quarterly financial statements; and
(f) Immediately after giving effect to the making, Conversion or
Extension of such Loan (and the application of the proceeds thereof) or to
the issuance or extension of such Letter of Credit, as applicable, the
aggregate principal amount of outstanding Revolving Loans and the aggregate
amount of outstanding LOC Obligations shall not exceed any of the
limitations applicable thereto set forth in Section 2.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for the issuance or extension of a Letter of Credit pursuant to
Section 2.2(b) shall constitute a representation and warranty by the Borrower of
the correctness of the matters specified in subsections (b), (c), (d), (e) and
(f) above.
SECTION 5
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents to the Agent and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance sheets of
-------------------
the Borrower and its Subsidiaries as of March 29, 1996, March 28, 1997 and April
3, 1998, and the audited consolidated statements of earnings and statements of
cash flows of the Borrower and its Subsidiaries for the years ended March 29,
1996, March 28, 1997 and April 3, 1998 have heretofore been furnished to each
Lender. Such financial statements (including the notes thereto) (i) have been
audited by Ernst & Young, LLP, (ii) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and (iii) present
fairly (on the basis disclosed in the footnotes to such financial statements)
the consolidated financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries as of such dates and for such periods. The
unaudited interim balance sheets of the Borrower and its Subsidiaries as at the
end of, and the related unaudited interim statements of earnings and of cash
flows for, each fiscal month and quarterly period ended after September 30, 1998
and prior to the Closing Date for which financial information is available have
heretofore been furnished to each Lender. Such interim financial statements for
each such period (i) have been
55
prepared in accordance with GAAP consistently applied throughout the periods
covered thereby, except for the absence of footnotes, and (ii) present fairly
the consolidated financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries as of such dates and for such periods, except
for recurring annual audit adjustments. During the period from April 3, 1998 to
and including the Closing Date or other than as previously disclosed in filings
made by the Borrower with the Securities and Exchange Commission, there has been
no sale, transfer or other disposition by any Consolidated Party of any material
part of the business or property of the Consolidated Parties, taken as a whole,
and no purchase or other acquisition by any of them of any business or property
(including any capital stock of any other Person) material in relation to the
consolidated financial condition of the Consolidated Parties, taken as a whole,
in each case, which is not reflected in the foregoing financial statements or in
the notes thereto. Except as disclosed in Schedule 5.1, the balance sheets and
------------
the notes thereto included in the foregoing financial statements disclose all
material liabilities, actual or contingent, of the Borrower and its Subsidiaries
as of the dates thereof.
(b) As of the Closing Date, the Consolidated Parties do not have any
material liabilities, actual or contingent, or Preferred Stock except (i) as
disclosed in the most recent interim balance sheet referred to in subsection (a)
above, (ii) for items disclosed in Schedule 5.1, (iii) for accounts payable
------------
incurred in the ordinary course of business consistent with past practice since
the date of the most recent interim balance sheet referred to in subsection (a)
above, (iv) Indebtedness under the Credit Documents and (v) Indebtedness set
forth on Schedule 7.1.
(c) The consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of the most recent fiscal month prior to the Closing Date for which
financial information is available, prepared on a pro forma basis, has
heretofore been furnished to each Lender. Such pro forma balance sheet has been
prepared in good faith by the Borrower, is based on the best information
available to the Borrower as of the date of delivery thereof, and presents
fairly on a pro forma basis the estimated consolidated financial position of the
Borrower and its Subsidiaries as of September 30, 1998. None of the
Consolidated Parties has any reason to believe that such pro forma balance sheet
is misleading in any material respect in light of the circumstances existing at
the time of the preparation thereof.
(d) The financial statements delivered to the Lenders pursuant to Section
6.1(a) and 6.1(b), if any, (i) have been prepared in accordance with GAAP
(except as may otherwise be permitted under Section 6.1(a) and (b)) and (ii)
present fairly (on the basis disclosed in the footnotes to such financial
statements, if any) the consolidated financial condition, results of operations
and cash flows of the Borrower and its Consolidated Subsidiaries as of the
respective dates thereof and for the respective periods covered thereby.
5.2 Organization and Good Standing. Each of the Consolidated Parties (a)
------------------------------
is duly organized, validly existing and is in good standing under the laws of
the jurisdiction of its incorporation or organization, (b) has the corporate or
other necessary power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction where its
ownership,
56
lease or operation of Property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not reasonably be expected to have a
Material Adverse Effect.
5.3 Power; Authorization; Enforceable Obligations. Each of the Credit
---------------------------------------------
Parties has the corporate or other necessary power and authority, and the legal
right, to execute, deliver and perform the Credit Documents to which it is a
party and, in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Agreement and to authorize the execution, delivery and performance of the Credit
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other similar act by or in respect of, any Governmental Authority
or any other Person is required to be obtained or made by or on behalf of any
Consolidated Party in connection with the borrowings or other extensions of
credit hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party,
except for (i) consents, authorizations, notices and filings disclosed in
Schedule 5.3, all of which have been obtained or made, and (ii) filings to
------------
perfect the Liens created by the Collateral Documents. This Agreement has been,
and each other Credit Document to which any Consolidated Party is a party will
be, duly executed and delivered on behalf of such Consolidated Party. This
Agreement constitutes, and each other Credit Document to which any Credit Party
or the Seller is a party when executed and delivered will constitute, a legal,
valid and binding obligation of such Credit Party and, to the knowledge of the
Credit Parties, of the Seller, enforceable against such Person in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.4 No Conflicts. Neither the execution and delivery by any Credit Party
------------
of the Credit Documents to which it is a party, nor the consummation of the
transactions contemplated therein, nor performance of and compliance with the
terms and provisions thereof by such Credit Party, nor the exercise of remedies
by the Secured Parties under the Credit Documents, will (a) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws or
other organizational or governing documents of such Person, (b) violate,
contravene or conflict with any Requirement of Law (including Regulation U or
Regulation X) applicable to it or its Properties, (c) violate, contravene or
conflict with contractual provisions of, cause an event of default under, or
give rise to material increased, additional, accelerated or guaranteed rights of
any Person under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound, or (d) result in or require the creation of any Lien (other than
the Lien of the Collateral Documents) upon or with respect to its Properties.
5.5 No Default. No Consolidated Party is in default in any respect under
----------
any loan agreement, indenture, mortgage, security agreement or other agreement
relating to Indebtedness or any other contract, lease, agreement or obligation
to which it is a party or by which any of its Properties is bound which default
could reasonably be expected to have a
57
Material Adverse Effect. No Default or Event of Default has occurred or exists.
5.6 Assets. Each Consolidated Party is the owner of, and has good and
------
marketable title to, all of its respective assets and none of such assets is
subject to any Lien other than Permitted Liens.
5.7 Indebtedness. Except as permitted under Section 7.1, the Consolidated
------------
Parties have no Indebtedness.
5.8 Litigation. Except as disclosed in Schedule 5.8, there are no
---------- ------------
actions, suits, investigations or legal, equitable, arbitration or
administrative proceedings pending for which service of process or other written
notice has been received or, to the knowledge of any Credit Party, threatened
against or affecting any Consolidated Party which could reasonably be expected
to have a Material Adverse Effect or which are pending or, to the knowledge of
any Credit Party, threatened as of the Closing Date.
5.9 Taxes. Each Consolidated Party has filed, or caused to be filed, all
-----
tax returns (including federal, state, local and foreign tax returns) required
to be filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings diligently pursued, and against which adequate reserves are being
maintained in accordance with GAAP. No Credit Party knows as of the Closing Date
of any pending investigation of such party by any taxing authority or proposed
tax assessments against it or any other Consolidated Party.
5.10 Compliance with Law. Each Consolidated Party is in compliance with
-------------------
all Requirements of Law (including Environmental Laws) applicable to it or to
its Properties, except for any such failure to comply which could not reasonably
be expected to have a Material Adverse Effect. No Requirement of Law could
reasonably be expected to cause a Material Adverse Effect. To the knowledge of
the Credit Parties, as of the Closing Date, none of the Consolidated Parties or
any of their respective material Properties or assets is subject to or in
default with respect to any judgment, writ, injunction, decree or order of any
court or other Governmental Authority. Except as disclosed in Schedule 5.10,
-------------
none of the Consolidated Parties has received any written communication prior to
the Closing Date from any Governmental Authority that alleges that any of the
Consolidated Parties is not in compliance in any material respect with any
Requirement of Law, except for allegations that have been satisfactorily
resolved and are no longer outstanding.
58
5.11 ERISA. Except as disclosed in Schedule 5.11:
----- -------------
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred,
and, to the knowledge of the Credit Parties, no event or condition has
occurred or exists as a result of which any ERISA Event could reasonably be
expected to occur, with respect to any Plan; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Code, whether or not waived, has occurred with respect to any
Plan; (iii) each Plan, Single Employer Plan and, to the knowledge of the
Credit Parties, each Multiemployer Plan has been maintained, operated, and
funded in compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or state
laws; and (iv) no lien in favor of the PBGC or a Plan has arisen or is
reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the
date on which this representation is made or deemed made (determined, in
each case, in accordance with Financial Accounting Standards Board
Statement 87, utilizing the actuarial assumptions used in such Plan's most
recent actuarial valuation report), did not exceed as of such valuation
date the fair market value of the assets of such Plan.
(c) Neither any Consolidated Party nor any ERISA Affiliate has
incurred, or, to the knowledge of the Credit Parties, could be reasonably
expected to incur, any material withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither any Consolidated
Party nor any ERISA Affiliate would become subject to any withdrawal
liability under ERISA if any Consolidated Party or any ERISA Affiliate were
to withdraw completely from all Multiemployer Plans and Multiple Employer
Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. Neither any Consolidated Party
nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the knowledge of the Credit Parties, reasonably
expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or may subject any
Consolidated Party or any ERISA Affiliate to any material liability under
Section 406, 409, 502(i) or 502(1) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Consolidated
Party or any ERISA Affiliate has agreed or is required to indemnify any
Person against any such liability.
(e) Neither any Consolidated Party nor any ERISA Affiliate has any
material liability with respect to "expected post-retirement benefit
obligations" within the
59
meaning of the Financial Accounting Standards Board Statement 106. Each
Plan which is a welfare plan (as defined in Section 3(1) of ERISA) to which
Sections 601 through 609 of ERISA and Section 4980B of the Code apply has
been administered in compliance in all material respects of such sections.
(f) Neither the execution and delivery of this Agreement nor the
consummation of the financing transactions contemplated hereunder will
involve any transaction which is subject to the prohibitions of Sections
404, 406 or 407 of ERISA or in connection with which a tax could be imposed
pursuant to Section 4975 of the Code. The representation by the Credit
Parties in the preceding sentence is made in reliance upon and subject to
the accuracy of the Lenders' representation in Section 10.15 with respect
to their source of funds and is subject, in the event that the source of
the funds used by the Lenders in connection with this transaction is an
insurance company's general asset account, to the application of Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995), compliance
with the regulations issued under Section 401(c)(1)(A) of ERISA, or the
issuance of any other prohibited transaction exemption or similar relief,
to the effect that assets in an insurance company's general asset account
do not constitute assets of an "employee benefit plan" within the meaning
of Section 3(3) of ERISA of a "plan" within the meaning of Section
4975(e)(1) of the Code.
5.12 Subsidiaries. Schedule 5.12 sets forth a complete and accurate list
------------ -------------
as of the Closing Date of all Subsidiaries of the Borrower. Schedule 5.12 sets
-------------
forth as of the Closing Date the jurisdiction of incorporation of each such
Subsidiary, the number of authorized shares of each class of Capital Stock of
each such Subsidiary, the number of outstanding shares of each class of Capital
Stock, the number and percentage of outstanding shares of each class of Capital
Stock of each such Subsidiary owned (directly or indirectly) by any Person; and
the number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect to
Capital Stock of each such Subsidiary. All the outstanding Capital Stock of
each Subsidiary of the Borrower is validly issued, fully paid and non-assessable
and, as of the Closing Date, is owned by the Borrower, directly or indirectly,
free and clear of all Liens (other than those arising under the Collateral
Documents). Other than as set forth in Schedule 5.12, as of the Closing Date no
-------------
such Subsidiary has outstanding any securities convertible into or exchangeable
for its Capital Stock nor does any such Person have outstanding any rights to
subscribe for or to purchase or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its Capital Stock.
5.13 Governmental Regulations, Etc. (a) No part of the Letters of Credit
-----------------------------
or proceeds of the Loans will be used, directly or indirectly, for the purpose
of purchasing or carrying any "margin stock" within the meaning of Regulation U,
or for the purpose of purchasing or carrying or trading in any securities. If
requested by any Lender or the Agent, the Borrower will furnish to the Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No indebtedness being
reduced or retired out of the proceeds of the Loans was or will be incurred
60
for the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Consolidated Parties. None of
the transactions contemplated by this Agreement (including the direct or
indirect use of the proceeds of the Loans) will violate or result in a violation
of the Securities Act of 1933, as amended, the Exchange Act or regulations
issued pursuant thereto, or Regulation T, U or X.
(b) No Consolidated Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended. In addition, no Consolidated Party is (i)
an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, (ii) controlled by such a company,
or (iii) a "holding company", a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(c) No director, executive officer or principal holder of Capital Stock of
any Consolidated Party is a director, executive officer or principal shareholder
of any Lender. For the purposes hereof the terms "director", "executive
officer" and "principal shareholder" (when used with reference to any Lender)
have the respective meanings assigned thereto in Regulation O issued by the
Board of Governors of the Federal Reserve System.
(d) Each Consolidated Party has obtained and holds in full force and
effect all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the ownership of its respective
Property and to the conduct of its respective businesses as presently conducted,
except those that could not reasonably be expected to have a Material Adverse
Effect.
(e) Each Consolidated Party is current with all material reports and
documents, if any, required to be filed with any state or federal securities
commission or similar agency and is in full compliance in all material respects
with all applicable rules and regulations of such commissions.
5.14 Purpose of Loans and Letters of Credit. The proceeds of the Revolving
--------------------------------------
Loans made after the Closing Date will be used solely to provide for the working
capital requirements of the Borrower and its Subsidiaries and for the general
corporate purposes of the Borrower and its Subsidiaries, including Permitted
Acquisitions. The Letters of Credit shall be used only for or in connection
with appeal bonds, reimbursement obligations arising in connection with surety
and reclamation bonds, reinsurance, domestic or international trade transactions
and other obligations relating to transactions entered into by the Borrower and
its Subsidiaries in the ordinary course of business.
5.15 Environmental Matters. Except as disclosed in Schedule 5.15 or except
--------------------- -------------
as could not reasonably be expected to have a Material Adverse Effect:
61
(a) Each of the facilities and properties owned, leased or operated
by the Consolidated Parties (the "Company Properties") and all operations
------------------
at the Company Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Company Properties or the businesses operated by the
Consolidated Parties (the "Businesses"), and there are no conditions or
----------
circumstances relating to the Businesses or Company Properties or any
former facilities, properties or businesses of the Consolidated Parties
that could give rise to liability of any Consolidated Party under any
applicable Environmental Laws or under any agreement or other instrument
pursuant to which any Consolidated Party has agreed or is required to
indemnify any Person against any such liability.
(b) None of the Company Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Company Properties in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability of any
Consolidated Party under, Environmental Laws or under any agreement or
other instrument pursuant to which any Consolidated Party has agreed or is
required to indemnify any Person against any such liability.
(c) No Consolidated Party has received prior to the Closing Date any
written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Company Properties or the
Businesses, nor does any Consolidated Party have knowledge or reason to
believe as of the Closing Date that any such notice will be received or is
being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Company Properties, or generated, treated, stored or
disposed of at, on or under any of the Company Properties or any other
location, in each case by or on behalf of any Consolidated Party in
violation of, or in a manner that could give rise to liability of any
Consolidated Party under, any applicable Environmental Law or under any
agreement or other instrument pursuant to which any Consolidated Party has
agreed or is required to indemnify any Person against any such liability.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of any Credit Party, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees, consent orders, administrative
orders, other decrees or orders or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Consolidated Parties, the Company Properties or the Businesses.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Company Properties, or arising from or
related to the operations (including disposal) of any Consolidated Party in
connection with the Company Properties or otherwise in connection with the
Businesses, in violation of or
62
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws or under any agreement or other
instrument pursuant to which any Consolidated Party has agreed or is
required to indemnify any Person against any such liability.
5.16 Intellectual Property. Except as disclosed in Schedule 5.16:
--------------------- -------------
(a) Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, service marks, proprietary techniques,
patents, patent applications, trade secrets, technology, know-how and processes
(the "Intellectual Property") necessary for each of them to conduct its business
---------------------
as currently conducted except for those the failure to own or have such legal
right to use could not reasonably be expected to have a Material Adverse Effect.
All material Intellectual Property owned by any Consolidated Party (is referred
to herein as the "Material Owned Intellectual Property") and all material
------------------------------------
Intellectual Property that any Consolidated Party has the right to use, but not
ownership of "Material Licensed Intellectual Property." The Material Owned
---------------------------------------
Intellectual Property and the Material Licensed Intellectual Property is
referred to collectively as the "Material Intellectual Property". Schedule 5.16
------------------------------ -------------
sets forth a complete and accurate list as of the Closing Date of each of the
Material Owned Intellectual Property and the Material Licensed Intellectual
Property. None of the Consolidated Parties has granted any options, licenses or
agreements of any kind relating to Material Intellectual Property.
(b) No material claim has been asserted and is pending by any Person
challenging or questioning the use, ownership or enforceability of any Material
Intellectual Property or the validity or effectiveness of any Material
Intellectual Property, nor does any Credit Party know of any such claim, and to
the Credit Parties' knowledge the use of the Material Intellectual Property by
any Consolidated Party does not infringe on the rights of any Person. None of
the Consolidated Parties is in breach of any material provision of any license,
sublicense or other agreement which relates to any of the Material Licensed
Intellectual Property, and none of the Consolidated Parties have taken any
action which would impair or otherwise adversely affect its rights in any of the
Material Intellectual Property. All the Material Owned Intellectual Property is
valid and enforceable, except that, with respect to the applications to register
any unregistered Intellectual Property (but not with respect to the underlying
Intellectual Property rights that are the subject of such applications), the
Credit Parties only represent and warrant that such applications are pending and
in good standing all without challenge of any kind.
(c) The Material Owned Intellectual Property has been maintained in
confidence in accordance with protection procedures customarily used to protect
rights of like importance. To the knowledge of the Credit Parties, all former
and current members of management and key personnel of each Consolidated Party,
including all former and current employees, agents, consultants and independent
contractors who have contributed to or participated in the conception and
development of any of the Material Owned Intellectual Property (collectively,
"Personnel"), have executed and delivered to such Consolidated Party a
---------
proprietary information agreement restricting such Person's right to disclose
proprietary information of the Consolidated Parties and their respective
clients. All former and current Personnel, either (A) have been party to a
"work-for-hire" arrangement or agreement with the Consolidated
63
Parties, in accordance with applicable Federal and state law, that has accorded
the Consolidated Parties full, effective, exclusive and original ownership of
all tangible and intangible property thereby arising or (B) have executed
appropriate instruments of assignment in favor of the Consolidated Parties as
assignee that have conveyed to the Consolidated Parties full, effective and
exclusive ownership of all tangible and intangible property thereby arising. No
former or current Personnel have any claim against the Consolidated Parties in
connection with such Person's involvement in the conception and development of
any Intellectual Property and no such claim has been asserted or is threatened.
None of the current officers and employees of any of the Consolidated Parties
have any patents issued or applications pending for any device, process, design
or invention of any kind now used or needed by any of the Consolidated Parties
in the furtherance of its business operations, which patents or applications
have not been assigned to the Consolidated Parties, with such assignment duly
recorded in the United States Patent Office.
5.17 Solvency. Each Credit Party is and, after consummation of the
--------
transactions contemplated by this Agreement, will be Solvent.
5.18 Investments. All Investments of any Consolidated Party are Permitted
-----------
Investments.
5.19 Location of Collateral. Schedule 5.19(a) sets forth a complete and
---------------------- ----------------
accurate list as of the Closing Date of (i) each real property owned by the
Consolidated Parties and (ii) each real property leased by the Consolidated
Parties for which annual rental payments exceed $10,000, in each case with
street address, county, state and country where located. Set forth on Schedule
--------
5.19(b) is a complete and accurate list as of the Closing Date of all Mortgaged
-------
Properties with street address, county, state and country where located. Set
forth on Schedule 5.19(c) is a complete and accurate list as of the Closing Date
----------------
of all locations where any tangible personal property of a Credit Party is
located, including county and state where located. Set forth on Schedule 5.19(d)
----------------
is the chief executive office and principal place of business of each
Consolidated Party as of the Closing Date.
5.20 Disclosure. Neither this Agreement nor any financial statements
----------
delivered to the Lenders pursuant hereto nor any other document, certificate or
statement furnished to the Lenders by or on behalf of any Consolidated Party in
connection with the transactions contemplated hereby (other than final
projections) contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements contained therein or
herein not misleading. All financial projections that have been made available
to the Agent or the Lenders by any Consolidated Party or any representatives
thereof in connection with the transactions contemplated hereby have been
prepared in good faith based upon assumptions believed by the Consolidated
Parties to be reasonable.
5.21 No Burdensome Restrictions; Material Agreements. No Consolidated
-----------------------------------------------
Party is a party to any agreement or instrument or subject to any other
obligation or any charter or corporate restriction or any provision of any
applicable law, rule or regulation which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. Schedule 5.21
-------------
sets forth a complete and accurate list as of the Closing Date of each
64
agreement, contract, lease, license, commitment or other instrument to which any
Consolidated Party is a party or by which it or any of its Properties are or may
be bound, the loss of which could, individually, reasonably be expected to have
a Material Adverse Effect (collectively, the "Material Contracts").
------------------
(b) Except as set forth in Schedule 5.21, as of the Closing Date, each
-------------
Material Contract will be in all material respects valid, binding and in full
force and effect and will be enforceable by the Borrower or the Subsidiary of
the Borrower which is a party thereto in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
equitable principles (whether in equity or at law). Except as set forth in
Schedule 5.21, as of the Closing Date, each of the Borrower and the Subsidiaries
-------------
will have performed in all material respects all obligations required to be
performed by it to date under the Material Contracts and it will not be (with or
without the lapse of time or the giving of notice, or both) in breach or default
in any material respect thereunder and, to the knowledge of the Credit Parties,
no other party to any of the Material Contracts will be (with or without the
lapse of time or the giving of notice, or both) in breach or default in any
material respect thereunder. As of the Closing Date, neither the Borrower nor
any of the Subsidiaries, nor, to the knowledge of the Borrower, any other party
to any Material Contract, will have given notice of termination of, or taken any
action inconsistent with the continuation of, any Material Contract. As of the
Closing Date, none of such other parties will have any presently exercisable
right to terminate any Material Contract for any reason, including as a result
of the execution, delivery or performance of the Credit Documents, the
collateral assignment of such Material Contract to the Agent on behalf of the
Lenders, except as set forth on Schedule 5.21.
-------------
(c) As of the Closing Date, none of the Consolidated Parties has any
knowledge of any actual or threatened adverse change in the relationship between
any Consolidated Party and any material customer, supplier distributor or other
party with whom such Consolidated Party does business.
5.22 Brokers' Fees. No Consolidated Party has any obligation to any Person
-------------
in respect of any finder's, broker's, investment banking or other similar fee.
5.23 Labor Matters. Except as disclosed in Schedule 5.23, there are no
------------- -------------
collective bargaining agreements or Multiemployer Plans covering the employees
of a Consolidated Party as of the Closing Date and none of the Consolidated
Parties has suffered any strike, walkout, work stoppage, unfair labor practice
complaint or other material labor difficulty within the five years prior to the
Closing Date. To the knowledge of the Credit Parties, as of the Closing Date,
no union representation question exists with respect to the employees of the
Consolidated Parties and no union organizing activities are taking place. The
hours worked by and payments made to employees of the Consolidated Parties have
not been in violation in any material respect of the Fair Labor Standards Act or
any other applicable Federal, state, local or foreign law dealing with such
matters. All payments due from any Consolidated Party, or for which any claim
may be made against any Consolidated Party, on account of wages, employee health
and welfare insurance or other benefits, have been paid or accrued as a
liability on the books of the Consolidated Parties.
65
5.24 Nature of Business. As of the Closing Date, the Consolidated Parties
------------------
are engaged in the business of marketing and distributing medical products to
physicians, alternate-site imaging centers, long-term care providers and
hospitals.
5.25 Security Documents. (a) The Security Agreement is effective to
------------------
create in favor of the Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable first priority security interest in the Collateral
(as defined in the Security Agreement) and, when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate and the Pledged Securities are delivered to the Agent,
the Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such of
the Collateral in which a security interest can be perfected under Article 8 or
9 of the Uniform Commercial Code, in each case prior and superior in right to
any other Person, other than with respect to Permitted Liens.
(b) When the Assignment of Patents and Trademarks, substantially in the
form of Exhibit A to the Security Agreement, is filed in the United States
Patent and Trademark Office and the Assignment of Copyrights, substantially in
the form of Exhibit B to the Security Agreement, is filed in the United States
Copyright Office, the Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the grantors
thereunder in the Intellectual Property covered in the Security Agreement, in
each case prior and superior in right to any other Person (it being understood
that subsequent recordings in the United States Patent and Trademark Office and
the United States Copyright Office may be necessary to perfect a lien on
registered trademarks, trademark applications and copyrights acquired by the
grantors after the Closing Date).
(c) The Agent, for the ratable benefit of the Secured Parties, will at all
times have the Liens provided for in the Collateral Documents and, subject to
the filing by the Agent of continuation statements to the extent required by the
Uniform Commercial Code, the Collateral Documents will at all times constitute a
valid and continuing lien of record and first priority perfected security
interest in all the Collateral referred to therein, except as priority may be
affected by Permitted Liens. No filings or recordings are required in order to
perfect the security interests created under the Collateral Documents, except
for filings or recordings listed on Schedule 5.25(c).
----------------
5.26 Transactions with Affiliates. Except as set forth in Schedule 5.26
---------------------------- -------------
and except for agreements and arrangements among the Borrower and its Wholly
Owned Subsidiaries or among Wholly Owned Subsidiaries of the Borrower, neither
the Borrower nor any of its Subsidiaries will be a party to or engaged in any
transaction with, and none of the properties and assets of the Borrower or any
of its Subsidiaries will be subject to or bound by any agreement or arrangement
with, any Affiliate of any Consolidated Party which would be prohibited by
Section 7.9.
5.27 Ownership. All of the outstanding shares of the common stock of the
---------
Borrower have been duly and validly authorized and issued, are fully paid and
nonassessable, and were not issued in violation of the preemptive rights of any
stockholder. Other than as set forth on
66
Schedule 5.27, as of the Closing Date, the Borrower has no outstanding
-------------
securities convertible into or exchangeable for its Capital Stock, no
outstanding rights to subscribe for or purchase its Capital Stock, no
outstanding options for the purchase of its Capital Stock, no agreements
providing for the issuance (contingent or otherwise) of its Capital Stock, no
incentive units, phantom stock or similar arrangements and no calls, commitments
or claims of any character relating to its Capital Stock.
5.28 Insurance. The Consolidated Parties maintain policies of fire and
---------
casualty, liability, business interruption and other forms of insurance in such
amounts, with such deductibles and against such risks and losses as are in
accordance with normal industry practice for the business and assets of the
Consolidated Parties. All such policies are in full force and effect, all
premiums due and payable thereon have been paid (other than retroactive or
retrospective premium adjustments that are not yet, but may be, required to be
paid with respect to any prior period under comprehensive general liability and
workmen's compensation insurance policies), and no notice of cancellation or
termination has been received with respect to any such policy which has not been
replaced on substantially similar terms prior to the date of such cancellation.
The activities and operations of the Consolidated Parties have been conducted in
a manner so as to conform in all material respects to all applicable provisions
of such insurance policies. Schedule 5.28 sets forth the insurance coverage of
-------------
the Consolidated Parties by carrier, policy number, expiration date, type and
amount as of the Closing Date.
5.29 Year 2000 Compliance. The Borrower has (a) initiated a review and
--------------------
assessment of all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower or any of its Subsidiaries (or its suppliers
and vendors) may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to, including and any date after
December 31, 1999), (b) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis, and (c) to date, implemented that plan in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be able to perform properly date-sensitive functions for all dates
before, including and after January 1, 2000 (that is, be "Year 2000 Compliant"),
-------------------
except to the extent that a failure to do so could not reasonably be expected to
have Material Adverse Effect.
5.30 Euro. The Borrower acknowledges that the current Euro market
----
conventions are under review by the financial institutions that participate in
the London Interbank Market. The Borrower agrees that the Eurodollar Loan
provisions in this Agreement shall be modified in accordance with the
conventions and customs adopted by such financial institutions in connection
with the conversion and introduction of various currencies into the Euro. No
such modification or change in currency nor any economic consequences resulting
therefrom shall (i) give rise to any right to terminate prematurely, contest,
cancel, rescind, alter, modify or renegotiate the provisions of this Agreement
or (ii) discharge, excuse or otherwise affect the performance of any obligations
of the Borrower or the Guarantors under this Agreement, any Notes or other
Credit Documents.
67
SECTION 6
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Agreement is
in effect or any amounts payable hereunder or under any other Credit Document
shall remain outstanding and until all of the Commitments hereunder shall have
terminated and all Letters of Credit shall have expired or been cancelled:
6.1 Information Covenants. The Borrower will furnish, or cause to be
---------------------
furnished, to the Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
---------------------------
event within 90 days after the end of each fiscal year of the Borrower, a
consolidated balance sheet and income statement of the Borrower and its
Consolidated Subsidiaries, as of the end of such fiscal year, together with
related consolidated statements of operations and retained earnings and of
cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
statements to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing reasonably
acceptable to the Agent and accompanied by an opinion of such accountants
(which shall not be qualified or limited in any material respect) to the
effect that such financial statements have been prepared in accordance with
GAAP and fairly present the consolidated financial position and
consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP consistently applied
(except for changes with which such accountants concur).
(b) Quarterly Financial Statements. As soon as available, and in any
------------------------------
event within 45 days after the end of each of the first three fiscal
quarters in each fiscal year of the Borrower, a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal quarter, together with related consolidated statements of operations
and retained earnings and of cash flows for such fiscal quarter and the
then elapsed portion of such fiscal year, setting forth in comparative form
consolidated figures for the corresponding period of the preceding fiscal
year, all such financial statements to be in reasonable form and detail and
reasonably acceptable to the Agent, and accompanied by a certificate of the
chief financial officer of the Borrower to the effect that such quarterly
financial statements have been prepared in accordance with GAAP and fairly
present in all material respects the consolidated financial position and
consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP consistently applied,
subject to changes resulting from normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
---------------------
statements provided for in Sections 6.1(a) and 6.1(b) above, a certificate
of the chief financial officer of the Borrower substantially in the form of
Exhibit N (i) demonstrating compliance with the financial covenants
---------
contained in Section 7.19 by calculation thereof
68
as of the end of each such fiscal period, (ii) stating that no Default or
Event of Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrower
proposes to take with respect thereto and (iii) stating whether, since the
date of the most recent financial statements delivered hereunder, there has
been any material change in the generally accepted accounting principles
applied in the preparation of the financial statements of the Borrower and
its Consolidated Subsidiaries, and, if so, describing such change.
(d) Annual Business Plan and Budgets. Prior to the end of each fiscal
--------------------------------
year of the Borrower, beginning with the fiscal year ending 1999, an annual
business plan and budget of the Borrower and its Consolidated Subsidiaries
containing, among other things, projected financial statements for the next
fiscal year.
(e) Accountant's Certificate. Within the period for delivery of the
------------------------
annual financial statements provided for in Section 6.1(a), a certificate
of the accountants conducting the annual audit stating that they have
reviewed this Agreement and stating further whether, in the course of their
audit, they have become aware of any Default or Event of Default and, if
any such Default or Event of Default exists, specifying the nature and
extent thereof as it relates to accounting matters.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
-----------------
other report or "management letter" submitted by independent accountants to
any Consolidated Party in connection with any annual, interim or special
audit of the books of such Consolidated Party.
(g) Reports. Promptly upon transmission or receipt thereof, (i)
-------
copies of all filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all publicly available financial statements, proxy statements, waivers,
amendments or other modifications which could have an adverse effect on the
Secured Parties, notices of non-compliance or default and reports as any
Consolidated Party shall send to its shareholders or to a holder of any
Indebtedness owed by any Consolidated Party in its capacity as such a
holder and (ii) upon the request of the Agent or the Required Lenders, all
reports and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.
(h) Notices. Upon obtaining knowledge thereof, the Borrower will give
-------
written notice to the Agent immediately of (i) the occurrence of any event
or condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Borrower proposes to take
with respect thereto, and (ii) the occurrence of any of the following with
respect to any Consolidated Party: (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against such Person which
if adversely determined could reasonably be expected to
69
have a Material Adverse Effect; or (B) the institution of any proceedings
against such Person with respect to, or the receipt of notice by such
Person of potential liability or responsibility (direct or indirect) for
violation, or alleged violation of any federal, state or local law, rule or
regulation, including Environmental Laws, the violation of which could
reasonably be expected to have a Material Adverse Effect.
(i) ERISA. The Borrower will give written notice to the Agent
-----
promptly (and in any event within five (5) Business Days after any officer
of any Consolidated Party obtains knowledge thereof) of: (i) any event or
condition, including any Reportable Event, that constitutes, or is
reasonably likely to lead to, an ERISA Event; (ii) with respect to any
Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the Borrower or any
of its ERISA Affiliates, or of a determination that any Multiemployer Plan
is in reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due date
(including extensions) thereof of all amounts which any Consolidated Party
or any ERISA Affiliate is required to contribute to each Plan pursuant to
its terms and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto; or (iv) any change in the funding
status of any Plan that could have a Material Adverse Effect, together with
a description of any such event or condition or a copy of any such notice
and a statement by the chief financial officer of the Borrower briefly
setting forth the details regarding such event, condition or notice and the
action, if any, which has been or is being taken or is proposed to be taken
by the Borrower with respect thereto. Promptly upon request, the
Consolidated Parties shall furnish the Agent and the Lenders with such
additional information concerning any Plan as may be reasonably requested,
including copies of each annual report/return (Form 5500 series), as well
as all schedules and attachments thereto required to be filed with the
Department of Labor and/or the Internal Revenue Service pursuant to ERISA
and the Code, respectively, for each "plan year" (within the meaning of
Section 3(39) of ERISA).
70
(j) Environmental.
-------------
(i) Upon the reasonable written request of the Agent, the
Consolidated Parties will furnish or cause to be furnished to the
Agent, at the expense of the Borrower, a report of an environmental
assessment of reasonable scope, form and depth (including, where
appropriate, invasive soil or groundwater sampling) by a consultant
acceptable to the Agent as to the nature and extent of the presence of
any Materials of Environmental Concern on any Company Properties and
as to the compliance by any Consolidated Party with Environmental Laws
at the Company Properties. If any Consolidated Party fails to deliver
such an environmental report within sixty (60) days after receipt of
such written request, then the Agent may arrange for the same, and the
Borrower hereby grants, and agrees to cause the other Consolidated
Parties to grant, to the Agent and their representatives access to the
Company Properties to reasonably undertake such an assessment
(including, where appropriate, invasive soil or groundwater sampling).
The reasonable cost of any assessment arranged by the Agent pursuant
to this provision shall be payable by the Borrower on demand and shall
be added to the obligations secured by the Collateral Documents.
(ii) The Consolidated Parties will conduct and complete all
investigations, studies, sampling, and testing and all remedial,
removal and other actions necessary to address all Materials of
Environmental Concern on, from or affecting any of the Company
Properties to the extent necessary to be in compliance with all
Environmental Laws and with the validly issued orders and directives
of all Governmental Authorities with jurisdiction over the Company
Properties to the extent any failure to take the foregoing actions
could reasonably be expected to have a Material Adverse Effect. The
Borrower acknowledges and agrees that if any Consolidated Party fails
to perform any of the actions required under this Section 6.1(j)(ii),
the Agent shall have the right (but not the obligation) to do so for
such Consolidated Party. The Borrower further acknowledges and agrees
that if any Consolidated Party fails to cooperate (e.g., by allowing
----
access to any premises or permitting the drilling of core samples,
etc.), the Agent and the Lenders will not have an adequate remedy at
law.
(k) Additional Patents and Trademarks. At the time of delivery of
---------------------------------
the financial statements and reports provided for in Section 6.1(a), a
report signed by the chief financial officer of the Borrower setting forth
(i) a list of registration numbers for all patents, trademarks, service
marks, tradenames and copyrights awarded to any Consolidated Party since
the last day of the immediately preceding fiscal year of the Borrower and
(ii) a list of all patent applications, trademark applications, service
xxxx applications, trade name applications and copyright applications
submitted by any Consolidated Party since the last day of the immediately
preceding fiscal year and the status of each such application, all in such
form as shall be reasonably satisfactory to the Agent.
71
(l) Other Information. With reasonable promptness upon request
-----------------
therefor, such other information regarding the business, properties or
financial condition of any Consolidated Party as the Agent or the Required
Lenders may reasonably request and that the Borrower may, without undue
expense, obtain; provided, however, that the Borrower shall not be
-------- -------
obligated to provide any information which would vitiate the attorney-
client or other privilege.
6.2 Preservation of Existence and Franchises. Except as a result of or in
----------------------------------------
connection with a dissolution, merger or disposition of a Subsidiary permitted
under Section 7.4 or Section 7.5, each of the Consolidated Parties will do all
things necessary to preserve and keep in full force and effect its existence,
rights, franchises and authority.
6.3 Books and Records. Each of the Consolidated Parties will keep
-----------------
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
6.4 Compliance with Law. Each of the Consolidated Parties will comply
-------------------
with all Requirements of Law applicable to it and its Properties to the extent
that noncompliance with any such Requirement of Law could reasonably be expected
to have a Material Adverse Effect.
6.5 Payment of Taxes and Other Indebtedness. Each of the Consolidated
---------------------------------------
Parties will pay and discharge (a) all taxes, assessments and other governmental
charges or levies imposed upon it, or upon its income or profits, or upon any of
its Properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its Properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
--------
however, that no Consolidated Party shall be required to pay any such tax,
-------
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings diligently pursued and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) could reasonably be expected
to have a Material Adverse Effect.
6.6 Insurance; Certain Proceeds. (a) Each of the Consolidated Parties
---------------------------
will at all times maintain in full force and effect insurance (including
worker's compensation insurance, liability insurance, casualty insurance and
business interruption insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice (or as are otherwise required by the
Collateral Documents). The Agent shall be named as loss payee or mortgagee, as
its interest may appear, with respect to all such property and casualty policy
and additional insured with respect to all such other policies (other than
workers' compensation and employee health policies), and each provider of any
such insurance shall agree, by endorsement upon the policy or policies issued by
it or by independent instruments furnished to the Agent, that if the insurance
carrier shall have received written notice from the Agent of the occurrence of
an Event of Default, the insurance carrier shall pay all proceeds otherwise
payable to the Consolidated Parties under
72
such policies directly to the Agent (which agreement shall be evidenced by a
"standard" or "New York" lender's loss payable endorsement in the name of the
Agent on Accord Form 27) and that it will give the Agent thirty (30) days' prior
written notice before any such policy or policies shall be altered or canceled,
and that no act or default of any Consolidated Party or any other Person shall
affect the rights of the Agent or the Lenders under such policy or policies.
(b) In case of any Casualty or Condemnation with respect to any Property
of any Consolidated Party or any part thereof in excess of $5,000,000, the
Borrower shall promptly give written notice thereof to the Agent generally
describing the nature and extent of such damage, destruction or taking. In such
case, the Borrower shall, or shall cause such Consolidated Party to, promptly
repair, restore or replace the Property of such Consolidated Party (or part
thereof) which was subject to such Casualty or Condemnation, at such
Consolidated Party's cost and expense, whether or not the Insurance Proceeds or
Condemnation Award, if any, received on account of such event shall be
sufficient for that purpose or otherwise reinvest such proceeds in the business
of the Borrower and its Subsidiaries as conducted on the date of such event;
provided, however, that such Property need not be repaired, restored or replaced
-------- -------
to the extent the failure to make such repair, restoration or replacement (i)(A)
is desirable to the proper conduct of the business of such Consolidated Party in
the ordinary course and otherwise in the best interest of such Consolidated
Party and (B) would not materially impair the rights and benefits of the Agent
or the Secured Parties under the Collateral Documents or any other Credit
Document or (ii) the failure to repair, restore or replace the Property is
attributable to the application of the Insurance Proceeds from such Casualty or
the Condemnation Award from such Condemnation to payment of the Credit
Obligations in accordance with the following provisions of this Section 3.3(b).
In the event a Consolidated Party shall receive any Insurance Proceeds from a
Casualty or Condemnation Award from a Condemnation in excess of $5,000,000, such
Consolidated Party will immediately pay over such proceeds to the Agent, for
payment of the Credit Obligations in accordance with Section 3.3(b) or, if such
funds constitute Reinvestment Funds, to be held by the Agent. The Agent agrees
to release such Insurance Proceeds or Condemnation Awards to the Borrower upon
its request and as needed from time to time to pay for the repair, restoration
or replacement of the portion of the Property subject to such Casualty or
Condemnation if, but only if, the conditions set forth in the definition of
"Reinvestment Funds" are satisfied at the time of such request.
(c) In connection with the covenants set forth in this Section 6.6, it is
understood and agreed that:
(i) none of the Agent, the Lenders or their respective agents or
employees shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 6.6, it being
understood that (A) the Consolidated Parties shall look solely to their
insurance companies or any other parties other than the aforesaid parties
for the recovery of such loss or damage and (B) such insurance companies
shall have no rights of subrogation against the Agent, the Lenders or their
agents or employees. If, however, the insurance policies do not provide
waiver of subrogation rights against such parties, as required above, then
the Borrower hereby
73
agrees to, and to cause each of the Consolidated Parties to, waive its
right of recovery, if any, against the Agent, the Lenders and their agents
and employees, to the extent permitted by law;
(ii) the Consolidated Parties will permit an insurance consultant
retained by the Agent, to review from time to time the insurance policies
maintained by the Consolidated Parties annually, at the expense of the
Lenders, or upon the occurrence of a Default or an Event of Default, at the
expense of the Borrower; and
(iii) to the extent the insurance consultant retained by either the
Lenders or the Borrower pursuant to clause (c)(ii) above recommends that
the Borrower maintain insurance policies substantially different from or in
addition to the policies then in place, the Required Lenders shall have the
right from time to time to require the Consolidated Parties to keep other
insurance in such form and amount as the Agent or the Required Lenders may
reasonably request; provided that such insurance shall be obtainable on
--------
commercially reasonable terms; and provided further that the designation of
-------- -------
any form, type or amount of insurance coverage by the Agent or the Required
Lenders under this Section 6.6 shall in no event be deemed a
representation, warranty or advice by the Agent or the Lenders that such
insurance is adequate for the purposes of the business of the Consolidated
Parties or the protection of their properties.
6.7 Maintenance of Property. Each of the Consolidated Parties will
-----------------------
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
and Casualty and Condemnation excepted, and will make, or cause to be made, as
to such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
6.8 Performance of Obligations. Each of the Consolidated Parties will
--------------------------
perform in all material respects all of its obligations under the terms of all
Material Contracts, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
6.9 Use of Proceeds. The Borrower will use the proceeds of the Loans and
---------------
will use the Letters of Credit solely for the purposes set forth in Section
5.14.
74
6.10 Audits/Inspections. Upon reasonable notice and during normal business
------------------
hours, each of the Consolidated Parties will permit representatives appointed by
the Agent or the Required Lenders, including independent accountants, agents,
employees, attorneys and appraisers, to visit and inspect its Property,
including its books and records, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies or photographs
thereof and to write down and record any information such representatives obtain
and shall permit the Agent or such representatives to investigate and verify the
accuracy of information provided to the Lenders and to discuss all such matters
with the officers, employees, independent accountants, attorneys and
representatives of the Consolidated Parties. The Borrower agrees that the Agent,
and its representatives, may conduct an audit of the Collateral annually, at the
expense of the Lenders, or upon the occurrence of a Default or an Event of
Default, at the expense of the Borrower.
6.11 Additional Credit Parties. As soon as practicable and in any event
-------------------------
within thirty (30) days after any Person becomes a direct or indirect Subsidiary
of any Credit Party, the Borrower shall provide the Agent with written notice
thereof setting forth information in reasonable detail describing all of the
assets of such Person and shall (a) if such Person is a Domestic Subsidiary of a
Credit Party, cause such Person to execute a Joinder Agreement, (b) if such
Person is a Subsidiary of a Credit Party (except if such Person is a Foreign
Subsidiary which is not a direct Foreign Subsidiary of any Credit Party), cause
100% (or 65% if such Person is a direct Foreign Subsidiary of a Credit Party for
so long as the pledge of any greater percentage would have adverse tax
consequences to the Credit Parties) of the Capital Stock of such Person to be
delivered to the Agent, together with undated stock powers signed in blank
(unless, with respect to a direct Foreign Subsidiary, such stock powers are
deemed unnecessary by the Agent in its reasonable discretion under the law of
the jurisdiction of incorporation of such Person), and to be subject at all
times to a first priority, perfected Lien in favor of the Agent pursuant to the
Collateral Documents, subject only to Permitted Liens, (c) if such Person owns
or leases any real property located in the United States of America or, to the
extent deemed to be material by the Agent or the Required Lenders in its or
their sole reasonable discretion, located elsewhere, cause such Person to
deliver to the Agent with respect to such real property (other than immaterial
leased properties) documents, instruments and other items of the types required
to be delivered pursuant to Section 6.12(b), all in form, content and scope
satisfactory to the Agent, and (d) cause such Person to deliver such other
documentation as the Agent may reasonably request in connection with the
foregoing, including appropriate UCC-1 financing statements, environmental
reports, landlord's waivers, certified resolutions and other organizational and
authorizing documents of such Person and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Agent's liens thereunder), all in form, content and scope
reasonably satisfactory to the Agent.
6.12 Pledged Assets. (a) Personal Property Collateral. Each of the
-------------- ----------------------------
Consolidated Parties will cause (i) all of its owned personal property located
in the United States and (ii) to the extent deemed to be material by the Agent
or the Required Lenders in its or their sole reasonable discretion, all of its
other owned personal property to be subject at all times to first priority,
perfected Liens in favor of the Agent pursuant to the Collateral Documents,
subject in
75
each case only to Permitted Liens. In furtherance of the foregoing terms of this
Section 6.12(a), the Borrower agrees to promptly provide the Agent with written
notice of the acquisition by any Consolidated Party of any real property located
in the United States of America having a market value greater than $1,000,000 or
the entering into a lease by any Consolidated Party of any real property located
in the United States of America for annual rent of $150,000 or more, setting
forth in reasonable detail the location and a description of the asset(s) so
acquired or leased. Without limiting the generality of the foregoing, the Credit
Parties will cause 100% of the Capital Stock of each of their direct and
indirect Subsidiaries (or 65% of such Capital Stock if such subsidiary is a
direct Foreign Subsidiary for so long as the pledge of any greater percentage
would have adverse tax consequences to the Credit Parties), excluding the
Capital Stock of any Foreign Subsidiary which is not a direct Foreign Subsidiary
of any Credit Party, to be subject at all times to a first priority, perfected
Lien in favor of the Agent pursuant to the terms and conditions of the
Collateral Documents.
(b) Real Property Collateral. The Borrower will within sixty (60) days
------------------------
after the Agent's request, which request the Agent may make at any time in its
sole discretion, deliver to the Agent, in form and substance reasonably
satisfactory to the Agent:
(i) for each fee interest having a market value greater than
$1,000,000 or leasehold interest having an annual rent of $150,000 or more
of any Consolidated Party in a real property asset, a fully executed and
notarized mortgage, deed of trust or deed to secure debt in substantially
the form attached hereto as Exhibit M (each, as the same may be amended,
---------
modified, restated or supplemented from time to time, a "Mortgage
--------
Instrument" and collectively the "Mortgage Instruments") encumbering such
---------- --------------------
fee interest or leasehold interest (each a "Mortgaged Property" and
------------------
collectively the "Mortgaged Properties");
--------------------
(ii) for each real property encumbered by a Mortgage Instrument, a
title report obtained by the Credit Parties in respect of each of the
Mortgaged Properties;
(iii) in the case of each Mortgaged Property, (A) maps or plats of an
as-built survey of the sites of the real property covered by the Mortgaged
Instruments, (B) title insurance policies, (C) flood hazard insurance, (D)
evidence of zoning and (E) any other document, certificate or report
requested by the Agent, in its reasonable discretion; and
(iv) in the case of each real property leasehold encumbered by a
Mortgage Instrument, to the extent permitted by the applicable lease,
evidence that the applicable lease, a memorandum of lease with respect
thereto, or other evidence of such lease in form and substance satisfactory
to the Agent, has been or will be recorded in all places to the extent
necessary or desirable, in the reasonable judgment of the Agent, so as to
enable the Mortgage Instrument encumbering such leasehold interest to
effectively create a valid and enforceable first priority lien (subject to
Permitted Liens) on such leasehold interest in favor of the Agent (or such
other Person as may be required or desired under local law) for the benefit
of the Secured Parties.
76
(c) Intellectual Property Collateral. If, subsequent to the Closing Date,
--------------------------------
a Credit Party shall acquire any Intellectual Property, securities, instruments,
chattel paper or other personal property required to be delivered to the Agent
as Collateral hereunder or under any of the Collateral Documents, the Borrower
shall promptly (and in any event within three (3) Business Days after any
officer of any Credit Party acquires knowledge of the same) notify the Agent of
the same. Each of the Credit Parties shall adhere to the covenants regarding
the location of personal property as set forth in the Security Agreement.
(d) Foreign Subsidiary Collateral. The Borrower will within a reasonable
-----------------------------
period of time after the Agent's request, which request the Agent may make at
any time in its sole discretion, deliver, or cause to be delivered, to the
Agent, a legal opinion of special foreign counsel for the Credit Parties for
each country in which any Foreign Subsidiary whose Capital Stock is to be
pledged pursuant to the Security Agreement is incorporated, in substantially the
form of Exhibit L-4, and such other documents and filings as the Agent shall
-----------
reasonably request.
6.13 Year 2000 Compliance. The Borrower will promptly notify the Agent in
--------------------
the event the Borrower discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant on a
timely basis, except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
6.14 Post-Closing Conditions. Within 30 days of the Closing Date, the
-----------------------
Borrower shall (a) comply with all provisions of Section 6.11 hereof with
respect to the acquisition of National Med Supply Company, an Ohio company and
(b) notwithstanding the provisions of Section 4.1(a) hereof, execute and deliver
the Intercompany Notes.
SECTION 7
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Agreement is
in effect or any amounts payable hereunder or under any other Credit Document
shall remain outstanding and until all of the Commitments hereunder shall have
terminated and all Letters of Credit shall have expired or been cancelled:
7.1 Indebtedness. None of the Consolidated Parties will contract, create,
------------
incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Agreement and the other Credit
Documents;
(b) Indebtedness of the Borrower and its Subsidiaries in existence on
the Closing Date to the extent disclosed in Schedule 7.1 (and renewals,
------------
refinancings and extensions thereof on terms and conditions, taken as a
whole, no less favorable to the Borrower and its Subsidiaries than the
terms and conditions of such existing
77
Indebtedness);
(c) purchase money Indebtedness (including Capital Leases) incurred by
the Borrower or any of its Subsidiaries after the Closing Date to finance
or refinance the purchase of fixed assets acquired after the Closing Date;
provided that (i) the total of all such Indebtedness for the Borrower and
--------
its Subsidiaries taken together shall not exceed an aggregate principal
amount of $10,000,000 at any time outstanding; (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed;
(iii) no such Indebtedness shall be refinanced for a principal amount in
excess of the principal balance outstanding thereon at the time of such
refinancing or on terms or conditions more favorable in any respect to the
holders thereof than the terms and conditions in effect at the time of such
refinancing; and (iv) such Indebtedness is issued and any Liens securing
such Indebtedness are created at the time of, or within 90 days after, the
acquisition of such assets and such Indebtedness is not secured by a Lien
on any other assets;
(d) obligations of the Borrower in respect of foreign currency
exchange agreements entered into in order to manage exchange rate risks and
not for speculative purposes;
(e) intercompany Indebtedness of any Subsidiaries of the Borrower
arising out of loans and advances permitted under Section 7.6;
(f) obligations of the Borrower in connection with any Permitted
Receivables Securitization, to the extent such obligations constitute
Indebtedness;
(g) in addition to the Indebtedness otherwise permitted by this
Section 7.1, other Indebtedness incurred after the Closing Date by the
Borrower or any of its Subsidiaries; provided that (i) the loan
--------
documentation with respect to such Indebtedness shall not contain covenants
or default provisions relating to any Consolidated Party that are more
restrictive than the covenants and default provisions contained in the
Credit Documents; provided, further, that (a) any unsecured, uncommitted
-------- -------
line of credit that is due and payable upon a material adverse change or
similar provision shall not violate this subparagraph (i) and (b) any
unsecured line of credit provided by any Lender need not satisfy this
subparagraph (i), so long as the aggregate principal amount of all such
lines of credit does not exceed $5,000,000 at any time, (ii) no Default or
Event of Default shall have occurred and be continuing immediately before
or immediately after giving effect to such incurrence and the Borrower
shall have delivered to the Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect on a Pro Forma Basis to the
incurrence of such Indebtedness and to the concurrent retirement of any
other Indebtedness of any Consolidated Party, the Credit Parties shall be
in compliance with all of the financial covenants set forth in Section 7.19
and (iii) the aggregate principal amount of such Indebtedness shall not
exceed $20,000,000 at any time outstanding;
(h) Indebtedness issued to a seller of a Person, business or asset in
78
connection with a Permitted Acquisition pursuant to Section 7.6; provided,
--------
that (i) such Indebtedness is not secured by a Lien on any assets, (ii)
----
such Indebtedness, and any Guaranty related thereto, is subordinate in all
respects to the interests of the Secured Parties hereunder and under each
of the other Loan Documents in the reasonable discretion of the Agent and
(iii) the aggregate principal amount of all such Indebtedness outstanding
at any time shall not exceed twenty percent (20%) of the aggregate purchase
price of any such Permitted Acquisition; and
(i) Indebtedness of a Subsidiary of the Borrower, such Subsidiary
being acquired after the date hereof pursuant to a Permitted Acquisition
pursuant to Section 7.6 and which such Indebtedness was in existence at the
time of the acquisition of such Subsidiary; provided, that, such
-------- ----
Indebtedness is non-recourse to any Consolidated Party (other than such
Subsidiary) and (ii) the aggregate principal amount of all such
Indebtedness does not exceed $10,000,000.
7.2 Liens. None of the Consolidated Parties will contract, create, incur,
-----
assume or permit to exist any Lien with respect to any of its Property, whether
now owned or hereafter acquired, except for Permitted Liens.
7.3 Nature of Business. None of the Consolidated Parties will alter in
------------------
any material way the current general or strategically planned character or
conduct of the business conducted by such Person as of the Closing Date.
7.4 Consolidation, Merger, Dissolution, etc. Except in connection with an
---------------------------------------
Asset Disposition permitted by the terms of Section 7.5, none of the
Consolidated Parties will enter into any transaction of merger or consolidation
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, notwithstanding the foregoing provisions of this
--------
Section 7.4:
(a) the Borrower may merge or consolidate with any of its Wholly Owned
Subsidiaries; provided that (i) the Borrower shall be the continuing or
--------
surviving corporation in such merger or consolidation, (ii) the Credit
Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Agent may request so as to cause the
Credit Parties to be in compliance with the terms of Section 6.12 after
giving effect to such transaction and (iii) no Default or Event of Default
shall have occurred and be continuing immediately before or immediately
after giving effect to such transaction;
(b) any Wholly Owned Subsidiary of the Borrower may merge or
consolidate with any other Wholly Owned Subsidiary of the Borrower;
provided that (i) the Credit Parties shall cause to be executed and
--------
delivered such documents, instruments and certificates as the Agent may
request so as to cause the Credit Parties to be in compliance with the
terms of Section 6.12 after giving effect to such transaction and (ii) no
Default or Event of Default shall have occurred and be continuing
immediately before or immediately after giving effect to such transaction;
79
(c) any Consolidated Party which is not a Credit Party may be merged
or consolidated with or into any Credit Party; provided that (i) such
--------
Credit Party shall be the continuing or surviving corporation in such
merger or consolidation, (ii) the Credit Parties shall cause to be executed
and delivered such documents, instruments and certificates as the Agent may
request so as to cause the Credit Parties to be in compliance with the
terms of Section 6.12 after giving effect to such transaction, (iii) no
Default or Event of Default shall have occurred and be continuing
immediately before or immediately after giving effect to such transaction
and (iv) the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a Pro
Forma Basis to such transaction, the Credit Parties shall be in compliance
with all of the financial covenants set forth in Section 7.20 as of the
last day of the most recent period of four consecutive fiscal quarters of
the Borrower which precedes or ends on the date of such transaction and
with respect to which the Agent has received the Required Financial
Information;
(d) the Borrower or any Subsidiary of the Borrower may merge with any
Person (other than a Consolidated Party) in connection with a Permitted
Acquisition if (i) the Borrower or such Subsidiary shall be the continuing
or surviving corporation in such merger or consolidation, (ii) the Credit
Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Agent may request so as to cause the
Credit Parties to be in compliance with the terms of Section 6.12 after
giving effect to such transaction, (iii) no Default or Event of Default
shall have occurred and be continuing immediately before or immediately
after giving effect to such transaction and (iv) the Borrower shall have
delivered to the Agent a Pro Forma Compliance Certificate demonstrating
that, upon giving effect on a Pro Forma Basis to such transaction, the
Credit Parties shall be in compliance with all of the financial covenants
set forth in Section 7.19 as of the last day of the most recent period of
four consecutive fiscal quarters of the Borrower which precedes or ends on
the date of such transaction and with respect to which the Agent has
received the Required Financial Information; and
(e) any Wholly Owned Subsidiary of the Borrower may dissolve,
liquidate or wind up its affairs at any time; provided that (i) the Credit
--------
Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Agent may request to cause the Credit
Parties to be in compliance with the terms of Section 6.12 after giving
effect to such transaction and (ii) no Default or Event of Default shall
have occurred and be continuing immediately before or after giving effect
to such transaction.
7.5 Asset Dispositions. None of the Consolidated Parties will make any
------------------
Asset Disposition (other than a Casualty or Condemnation); provided that the
--------
foregoing provisions of this Section 7.5 shall not prohibit the following:
(a) the sale, conveyance or other contribution of applicable
transferred assets by the Borrower or any of its Subsidiaries as part of
any Permitted Receivables Securitization;
80
(b) any Asset Disposition by any Consolidated Party to the Borrower
or any of the Subsidiary Guarantors if (i) the Credit Parties shall cause
to be executed and delivered such documents, instruments and certificates
as the Agent may request so as to cause the Credit Parties to be in
compliance with the terms of Section 6.12 after giving effect to such Asset
Disposition and (ii) after giving effect such Asset Disposition, no Default
or Event of Default exists;
(c) the sale of inventory in the ordinary course of business for fair
value and on an arms-length basis;
(d) the liquidation or sale of Cash Equivalents for the account of
the Borrower;
(e) the sale, lease, transfer, assignment or other disposition of
assets (other than in connection with any Casualty or Condemnation) of the
Borrower or any of its Subsidiaries to any other Person, so long as (i) the
Net Cash Proceeds from any such individual transaction or series of related
transactions shall not exceed $1,000,000, (ii) the fair market value of all
property disposed of pursuant to this clause (e) shall not exceed
$5,000,000 in the aggregate in any fiscal year of the Borrower and (iii)
such transaction is made for cash at no less than fair market value;
(f) the disposition of machinery or equipment or other fixed assets
of the Borrower or any of its Subsidiaries which will be replaced or
upgraded with machinery or equipment put to a similar use and owned by such
Person, provided that (i) such replacement or upgraded machinery and
equipment or other fixed assets is acquired (or a firm order therefor is
placed) within 180 days after such disposition, (ii) the book value of all
property disposed of pursuant to this clause (f) does not exceed $1,000,000
in the aggregate in any fiscal year of the Borrower and (iii) upon their
acquisition, such replacement assets become subject to the Lien of the
Agent in favor of the Lenders under the Collateral Documents;
(g) the disposition of damaged, worn out or obsolete tangible assets
in the ordinary course of business and in a commercially reasonable manner,
so long as the fair market value of all property disposed of pursuant to
this clause (g) does not exceed $1,000,000 in the aggregate in any fiscal
year of the Borrower;
(h) any Sale and Leaseback Transaction permitted under Section 7.13;
(i) any sale of assets not related to the core business of the
Borrower conducted on the date hereof; provided, that, (i) such assets were
-------- ----
acquired by the Borrower pursuant to a Permitted Acquisition and (ii) the
aggregate proceeds of all such asset sales do not exceed $15,000,000 in any
fiscal year of the Borrower; and
(j) any other Asset Disposition; provided that (i) the consideration
therewith is at least 75% cash or Cash Equivalents; (ii) if such
transaction is a Sale and Leaseback
81
Transaction, such transaction is permitted by the terms of Sections 7.1 and
7.13; (iii) such transaction does not involve the sale or other disposition
of a minority equity interest in any Consolidated Party; (iv) the aggregate
net book value of all of the assets sold or otherwise disposed of by the
Consolidated Parties in all such transactions in reliance on this paragraph
shall not exceed $10,000,000 in any fiscal year of the Borrower; and (v) no
Default or Event of Default shall have occurred and be continuing
immediately before or immediately after giving effect to such transaction
and the Borrower shall have delivered to the Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect on a Pro Forma Basis to
such transaction, the Credit Parties shall be in compliance with all of the
financial covenants set forth in Section 7.19.
Upon consummation of an Asset Sale permitted by this Section 7.5, the Agent
shall (to the extent applicable) deliver to the Borrower, upon the Borrower's
request and at the Borrower's expense, such documentation as is reasonably
necessary to evidence the release of the Agent's security interest, if any, in
the assets being disposed of, including amendments or terminations of UCC
financing statements, if any, the return of stock certificates, if any, and the
release of any Subsidiary being disposed of in its entirety from all of its
obligations, if any, under the Credit Documents.
7.6 Investments; Acquisitions. None of the Consolidated Parties will make
-------------------------
any Investment in, to or for the benefit of any Person or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other Person; provided that any
--------
Consolidated Party may purchase inventory in the ordinary course of business and
may make Permitted Investments.
7.7 Restricted Payments. None of the Consolidated Parties will, directly
-------------------
or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) dividends payable solely in common stock of such
Person, (b) dividends or other distributions payable to the Borrower or any
Wholly Owned Subsidiary of the Borrower, (c) repurchases of common stock of the
Borrower from any employee of the Consolidated Parties upon the termination of
employment of such Person, provided that the aggregate amount paid in all such
--------
repurchases shall not exceed $1,000,000 in any fiscal year of the Borrower.
7.8 Prepayments of Subordinated Indebtedness, etc. None of the
---------------------------------------------
Consolidated Parties will (a) after the issuance thereof, amend, waive or modify
(or permit the amendment, waiver or modification of) any of the terms,
agreements, covenants or conditions of or applicable to any Indebtedness issued
by such Consolidated Party that is subordinated to the Indebtedness hereunder if
such amendment, waiver or modification would add or change any terms,
agreements, covenants or conditions in a manner adverse to any Consolidated
Party, or shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest
rate applicable thereto or change any subordination provision thereof, or (b)
directly or indirectly redeem, purchase, prepay, retire, defease or otherwise
acquire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any such Indebtedness (other than Credit Obligations), or
set
82
aside any funds for such purpose, whether such redemption, purchase, prepayment,
retirement or acquisition is made at the option of any Consolidated Party or at
the option of the holder thereof, and whether or not any such redemption,
purchase, prepayment, retirement or acquisition is required under the term and
conditions applicable to such Indebtedness or (c) release, cancel, compromise or
forgive in whole or in part the Indebtedness evidenced by the Intercompany
Notes.
7.9 Transactions with Affiliates. None of the Consolidated Parties will
----------------------------
engage in any transaction or series of transactions with (a) any officer,
director, holder of Capital Stock, Subsidiary or Affiliate of any Consolidated
Party or (b) any Affiliate of any such officer, director, holder, Subsidiary or
Affiliate, other than (i) transfers of assets to any Credit Party permitted by
Section 7.5, (ii) transactions expressly permitted by Section 7.1, Section 7.4,
Section 7.5, Section 7.6 or Section 7.7, (iii) normal compensation or forecasted
bonus compensation and reimbursement of reasonable expenses of officers and
directors, (iv) any transaction entered into among the Borrower and its Wholly
Owned Subsidiaries or among such Wholly Owned Subsidiaries, and (v) so long as
no Default or Event of Default has occurred and is continuing, other
transactions which are engaged in by any Consolidated Party in the ordinary
course of its business on terms and conditions as favorable to such Person as
would be obtainable by it in a comparable arms-length transaction with an
independent, unrelated third party.
7.10 Fiscal Year; Organizational Documents. None of the Consolidated
-------------------------------------
Parties will (a) change its fiscal year or (b) amend, modify or change its
articles of incorporation (or corporate charter or other similar organizational
document) in any respect or amend, modify or change its bylaws (or other similar
document) in any manner adverse in any respect to the rights or interests of the
Lenders, (c) enter into any amendment, modification or waiver that is adverse in
any respect to the Lenders to any Material Contract as in effect on the Closing
Date or (d) enter into any amendment, modification or waiver to the Subordinated
Note Indenture or any other document relating to the Subordinated Notes, in each
case as in effect on the Closing Date, that is adverse in any respect to the
Lenders. The Credit Parties will cause the Consolidated Parties to promptly
provide the Lenders with copies of all proposed amendments to the foregoing
documents and instruments as in effect as of the Closing Date.
83
7.11 Limitation on Restricted Actions. The Borrower will not permit any of
--------------------------------
its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any such Person to (a) pay dividends or make any other distributions
to any Credit Party on its Capital Stock or with respect to any other interest
or participation in, or measured by, its profits, (b) pay any Indebtedness or
other obligation owed to any Credit Party, (c) make loans or advances to any
Credit Party, (d) sell, lease or transfer any of its properties or assets to any
Credit Party or (e) act as a Guarantor and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing under or
by reason of (i) this Agreement and the other Credit Documents, (ii) applicable
law or (iii) any document or instrument governing Indebtedness incurred pursuant
to Section 7.1(c), provided that any such restriction contained therein relates
--------
only to the asset or assets constructed or acquired in connection therewith or
(iv) customary non-assignment provisions in any lease governing a leasehold
interest.
7.12 Ownership of Subsidiaries; Limitations on the Borrower. (a) The
------------------------------------------------------
Borrower will not (i) permit any Person (other than the Borrower or any Wholly
Owned Subsidiary of the Borrower) to own any Capital Stock of any Subsidiary of
the Borrower, (ii) permit any Subsidiary of the Borrower to issue Capital Stock
to any Person, except (A) the Borrower or any Wholly Owned Subsidiary of the
Borrower or (B) to qualify directors where required by applicable law or to
satisfy other requirements of applicable law with respect to the ownership of
Capital Stock of Foreign Subsidiaries or (iii) permit the Borrower or any
Subsidiary of the Borrower to issue any shares of Preferred Stock.
7.13 Sale Leasebacks. None of the Consolidated Parties will, directly or
---------------
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or hereafter
acquired, (a) which such Consolidated Party has sold or transferred or is to
sell or transfer to a Person which is not a Consolidated Party or (b) which such
Consolidated Party intends to use for substantially the same purpose as any
other Property which has been sold or is to be sold or transferred by such
Consolidated Party to another Person which is not a Consolidated Party in
connection with such lease.
7.14 Capital Expenditures. The Borrower will not permit Consolidated
--------------------
Capital Expenditures for the period from the Closing Date through the end of
fiscal year 1999 of the Borrower to exceed $6,000,000, for fiscal year 2000 of
the Borrower to exceed $19,000,000, and for fiscal year 2001 of the Borrower and
in each fiscal year of the Borrower thereafter to exceed $22,000,000, in any
such fiscal year.
84
7.15 No Further Negative Pledges. None of the Consolidated Parties will
---------------------------
enter into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation
unless such agreement permits the securing of the Credit Obligations to the
extent provided herein, or any other assets of the Borrower and its Subsidiaries
which may constitute Collateral hereunder or under the Collateral Documents,
except (a) pursuant to this Agreement and the other Credit Documents, (b)
pursuant to the documents executed in connection with any Permitted Receivables
Securitization (but only to the extent that the related prohibitions or
restrictions against other encumbrances pertain to the applicable transferred
assets actually sold, contributed, financed or otherwise conveyed or pledged
pursuant to such Permitted Receivables Securitization and (c) pursuant to any
document or instrument governing Indebtedness incurred pursuant to Section
7.1(c), provided that any such restriction contained therein relates only to the
--------
asset or assets constructed or acquired in connection therewith.
7.16 Limitation on Foreign Operations and Subsidiaries. The Borrower will
-------------------------------------------------
not permit (i) as of the last day of any fiscal quarter of the Borrower, the
Borrower and its Domestic Subsidiaries to own directly assets (other than
Investments) representing less than 80% of Consolidated Total Assets on such
date or (ii) as of the last day of any fiscal quarter of the Borrower, the
portion of Consolidated Net Income for the period of four consecutive fiscal
quarters of the Borrower then ended which is attributable to the Foreign
Subsidiaries of the Borrower to exceed 20% of Consolidated Net Income for such
period.
7.17 Impairment of Security Interests. None of the Consolidated Parties
--------------------------------
will take or omit to take any action, which action or omission might or would
have the result of materially impairing the security interests in favor of the
Agent on behalf of the Secured Parties with respect to the Collateral and none
of the Consolidated Parties will grant to any Person (other than the Secured
Parties pursuant to the Collateral Documents) any interest whatsoever in the
Collateral, except for Permitted Liens.
7.18 Sales of Receivables. None of the Consolidated Parties will sell with
--------------------
recourse, discount or otherwise sell or dispose of its notes or accounts
receivable to any Person except (i) to any Credit Party on an arms-length basis
and (ii) pursuant to a Permitted Receivables Securitization.
7.19 Financial Covenants.
-------------------
(a) Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed
---------------------------
Charge Coverage Ratio, as of the last day of any fiscal quarter of the Borrower,
to be less than 2.0 to 1.0.
85
(b) Leverage Ratio. The Borrower will not permit the Leverage Ratio, as
--------------
of the last day of any fiscal quarter of the Borrower, to be greater than the
ratio specified in the table set forth below for such period:
From To and Including Leverage Ratio
---- ---------------- --------------
Closing Date December 31, 2001 3.50 to 1.00
January 1, 2002 December 31, 2002 3.25 to 1.00
January 1, 2003 Maturity Date 3.00 to 1.00
(c) Consolidated Net Worth. The Borrower will not permit Consolidated Net
----------------------
Worth as of the last day of any fiscal quarter of the Borrower to be less than
the "Minimum Compliance Level". The Minimum Compliance Level shall be
$337,000,000 on the Closing Date, and shall be increased as of the last day of
each fiscal quarter of the Borrower ending after the Closing Date, commencing
with the fiscal quarter ending December 31, 1998, by an amount equal to the sum
of 50% of Consolidated Net Income (if positive) for such fiscal quarter and 100%
of the Net Cash Proceeds (and the fair market value of any noncash proceeds) of
any Equity Issuance by any Consolidated Party during such fiscal quarter (other
than any capital contribution by the Borrower or any of its Wholly Owned
Subsidiaries to any Wholly Owned Subsidiary of the Borrower). The foregoing
increases in the Minimum Compliance Level shall be fully cumulative and no
reduction in the Minimum Compliance Level shall be made to reflect negative Net
Income for any period.
7.20 Deposit Account Balances. The Borrower will not permit, and will
------------------------
cause its Subsidiaries not to permit, the available balance of any Deposit
Account to exceed $20,000 on any day.
SECTION 8
EVENTS OF DEFAULT
8.1 Events of Default. An Event of Default shall exist upon the
-----------------
occurrence of any of the following specified events (each an "Event of
--------
Default"):
-------
(a) Payment. Any Credit Party shall:
-------
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise; or
(ii) default, and such default shall continue unremedied for
three (3) or more Business Days, in the payment when due of any
interest on the Loans or on any reimbursement obligations arising from
drawings under Letters of Credit, or of any Fees or other Credit
Obligations owing hereunder, under any of the other Credit Documents
or otherwise;
86
(b) Representations. Any representation, warranty or statement made
---------------
or deemed to be made by any Credit Party herein, in any of the other Credit
Documents or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to have been false or
misleading in any material respect on the date as of which it was made,
deemed to have been made or delivered;
(c) Covenants. Any Credit Party shall:
---------
(i) default in the due performance or observance of any term,
covenant or agreement contained in Section 6.1(a), (b), (c), (e) or
(h), 6.2, 6.9, 6.11, 6.12 or 7.1 through 7.20, inclusive;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Section 6.1(d), (f), (g), (i), (j)
or (k) and such default shall continue unremedied for a period of at
least five (5) days after the earlier of a Responsible Officer of a
Credit Party becoming aware of such default or notice thereof by the
Agent or the Required Lenders; or
(iii) default in the due performance or observance of any term,
covenant or agreement (other than those referred to in subsection (a),
(b), (c)(i) or (c)(ii) of this Section 8.1) contained in this
Agreement, any of the other Credit Documents and such default shall
continue unremedied for a period of at least 15 days after the earlier
of a Responsible Officer of a Credit Party becoming aware of such
default or notice thereof by the Agent or the Required Lenders;
(d) Credit Documents. Except as applicable to a Subsidiary of the
----------------
Borrower as a result of or in connection with a dissolution, merger or
disposition of such Subsidiary permitted under this Agreement and except as
a result of releases of Collateral in accordance with all applicable
provisions of the Credit Documents, any Credit Document shall fail to be in
full force and effect or to give the Agent or any other Secured Party the
Liens, rights, powers and privileges purported to be created thereby, or
any Credit Party or any Person acting by or on behalf of any Credit Party
shall so state in writing;
(e) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
----------------
to any Consolidated Party;
(f) Defaults under Other Agreements.
-------------------------------
(i) Any Consolidated Party shall default in the performance or
observance (beyond the applicable grace period with respect thereto,
if any) of any material obligation or condition of any contract, lease
or other agreement material to the Consolidated Parties, taken as a
whole; or
87
(ii) With respect to any Indebtedness (other than Indebtedness
outstanding under the Credit Documents) in excess of $5,000,000 in the
aggregate for the Consolidated Parties taken as a whole, (A) any
Consolidated Party shall default in any payment (beyond the applicable
grace period with respect thereto, if any) with respect to any such
Indebtedness, (B) any Consolidated Party shall default in the
observance or performance of any other term, covenant, condition or
agreement relating to such Indebtedness or contained in any instrument
or agreement evidencing or securing such Indebtedness or relating
thereto, or any other event or condition shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or permit the holder or holders of such Indebtedness (or any
trustee or agent on behalf of such holders) to cause (determined
without regard to whether any notice or lapse of time is required) any
such Indebtedness (or any portion thereof) to become due prior to its
stated maturity, (C) any such Indebtedness (or any portion thereof)
shall be declared due and payable, or shall be required to be prepaid
(other than by a regularly scheduled required payment) prior to the
stated maturity thereof or (D) any Consolidated Party shall be
required by the terms of such Indebtedness to offer to prepay or
repurchase such Indebtedness (or any portion thereof) prior to the
stated maturity thereof;
(g) Judgments. One or more judgments or decrees shall be entered
---------
against one or more of the Consolidated Parties involving a liability of
$5,000,000 or more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier which has acknowledged coverage
and has the ability to perform) and any such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 60
days from the entry thereof, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of any Consolidated
Party to enforce any such judgment;
(h) ERISA. Any of the following events or conditions shall occur:
-----
(i) any "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived,
shall exist with respect to any Plan, or any lien shall arise on the assets
of any Consolidated Party or any ERISA Affiliate in favor of the PBGC or a
Plan; (ii) an ERISA Event shall occur with respect to a Single Employer
Plan, which is, in the opinion of the Agent or the Required Lenders, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA; (iii) an ERISA Event shall occur with respect to a Multiemployer
Plan or Multiple Employer Plan, which is, in the opinion of the Agent or
the Required Lenders, reasonably likely to result in (A) the termination of
such Plan for purposes of Title IV of ERISA or (B) any Consolidated Party
or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency of (within the meaning of Section 4245 of ERISA) such
Plan; (iv) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
shall occur which may subject any Consolidated Party or any ERISA Affiliate
to any liability under Section 406, 409, 502(i) or 502(1) of ERISA or
Section 4975 of the Code or under any agreement or
88
other instrument pursuant to which any Consolidated Party or any ERISA
Affiliate has agreed or is required to indemnify any Person against any
such liability; or (v) any other event or condition out of the ordinary
course of business shall occur or exist with respect to any Plan; and, in
each case in clauses (i) through (v) above, such event or condition,
together with all other such events or conditions, if any, could reasonably
be expected to involve possible taxes, penalties and other liabilities
affecting the Consolidated Parties in an aggregate amount in excess of
$5,000,000 or require payments by the Consolidated Parties exceeding
$5,000,000 in any fiscal year of the Borrower;
(i) Intellectual Property. Any Material Intellectual Property or any
---------------------
material license relating thereto shall be invalid or unenforceable in
whole or in part or shall for any reason not be in full force and effect
and enforceable by the Consolidated Parties or shall infringe the rights of
any other Person or any other adverse change in the Material Intellectual
Property rights of the Consolidated Parties shall occur and such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect;
(j) Environmental Matters. Either (i) any Consolidated Party shall
---------------------
be liable, whether directly, indirectly through required indemnification of
any Person or otherwise, for the costs of investigation and/or remediation
of any Materials of Environmental Concern originating from or affecting any
property or properties, whether or not owned, leased or operated by any
Consolidated Party, which liability, together with all other such
liabilities of the Consolidated Parties, could reasonably be expected to
exceed $5,000,000 in the aggregate or require payments by the Consolidated
Parties exceeding $5,000,000 in any fiscal year of the Borrower or (ii) any
Federal, state, regional, local or other environmental regulatory agency or
authority shall commence an investigation or take any other action that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(k) Change of Control. There shall occur any Change of Control; or
-----------------
(l) Material Contracts. Any Material Contract shall be declared by
------------------
any Governmental Authority to be invalid or unenforceable in whole or in
part or shall for any other reason not be, or shall be asserted by any
Consolidated Party or any Person acting by or on behalf of any Consolidated
Party not to be, in full force and effect and enforceable in accordance
with its terms and such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect.
8.2 Acceleration; Remedies. Upon the occurrence of an Event of Default,
----------------------
and at any time thereafter unless and until such Event of Default has been
waived by the requisite Lenders (pursuant to the voting requirements of Section
10.6) or cured to the satisfaction of the requisite Lenders (pursuant to the
voting requirements of Section 10.6), the Agent upon the request and direction
of the Required Lenders shall (subject to Section 9.1 and Section 9.3), by
written notice to the Borrower, take any or all of the following actions
(without prejudice to
89
the rights of the Agent or any Lender to enforce its claims against the Credit
Parties, except as otherwise specifically provided for in this Agreement):
(a) Termination of Commitments. Declare the Commitments terminated,
--------------------------
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of all Loans, any
------------
reimbursement obligations arising from drawings under Letters of Credit,
all accrued interest in respect thereof, all accrued and unpaid Fees, all
other Credit Obligations and any and all other indebtedness or obligations
of any and every kind owing by any Credit Party to the Agent and/or any of
the Secured Parties under the Credit Documents to be due whereupon the same
shall be immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower
---------------
agrees that upon receipt of such notice, or upon the occurrence of an Event
of Default under Section 8.1(e), it will immediately pay) to the Agent
additional cash, to be held by the Agent, in a cash collateral account
pursuant to Section 2.2(l), in an amount equal to the aggregate amount of
the outstanding LOC Obligations (including the maximum aggregate amount
which is, or at any time thereafter may become, available to be drawn under
all Letters of Credit then outstanding) and terminate any Letter of Credit
which may be terminated in accordance with its terms.
(d) Enforcement of Rights. Enforce any and all rights and interests
---------------------
created and existing under the Credit Documents, including all rights and
remedies existing under the Collateral Documents, all rights and remedies
against the Guarantors and all rights of set-off.
Notwithstanding the foregoing, (x) if an Event of Default specified in Section
8.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees,
all other Credit Obligations and any and all other indebtedness or obligations
owing to the Agent and/or any of the Secured Parties under the Credit Documents
automatically shall immediately become due and payable without the giving of any
notice or other action by the Agent or the Lenders and (y) upon the request and
at the direction of Lenders holding a majority of the Revolving Credit Facility
Obligations, the Agent shall take the actions specified in Section 8.2(a) and/or
8.2(c).
8.3 Equitable Remedies. In case any one or more of the covenants and/or
------------------
agreements set forth in this Agreement or any other Credit Document shall have
been breached by any Credit Party, then the Agent may proceed to protect and
enforce the Lenders' rights either by suit in equity and/or by action at law,
including an action for damages as a result of any such breach and/or an action
for specific performance of any such covenant or agreement contained in this
Agreement or such other Credit Document. Without limitation of the foregoing,
the Borrower agrees that failure to comply with any of the covenants contained
90
herein will cause irreparable harm and that specific performance shall be
available in the event of any breach thereof. The Agent acting pursuant to this
paragraph shall be indemnified by the Borrower against all liability, loss or
damage, together with all reasonable costs and expenses related thereto
(including reasonable legal and accounting fees and expenses) in accordance with
Section 10.5.
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SECTION 9
AGENCY PROVISIONS
9.1 Appointment, Powers and Immunities. Each Lender hereby irrevocably
----------------------------------
appoints and authorizes the Agent to act as its administrative agent under this
Agreement and the other Credit Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Credit Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 9.5 and
the first two sentences of Section 9.6 hereof shall include its Affiliates and
its own and its Affiliates' officers, directors, employees, and agents): (a)
shall not have any duties or responsibilities except those expressly set forth
in this Agreement and the other Credit Documents and shall not be a trustee or
fiduciary for any Lender or other Secured Party; (b) shall not be responsible to
the Secured Parties for any recital, statement, representation or warranty
(whether written or oral) made in or in connection with any Credit Document or
any certificate or other document referred to or provided for in, or received by
any of them under, any Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Credit
Document, or any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty to
ascertain, inquire into or verify the performance or observance of any covenants
or agreements by any Credit Party or the satisfaction of any condition or the
use of the proceeds of the Loans or the use of the Letters of Credit or the
existence or possible existence of any Default or Event of Default or to inspect
the property (including the books and records) of any Credit Party or any of its
Subsidiaries or Affiliates; (d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Credit Document, except as
requested and directed by the Lenders in accordance with the terms and
conditions of this Agreement; and (e) shall not be responsible for any action
taken or omitted to be taken by it under or in connection with any Credit
Document, except for its own gross negligence or willful misconduct. The Agent
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Without limiting the generality of the foregoing, the
Agent is hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Lenders with
respect thereto, as contemplated by and in accordance with the provisions of
this Agreement and the Collateral Documents. The provisions of this Section 9
are solely for the benefit of the Agent and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Agreement and the
other Credit Documents, the Agent shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Credit Party or any of their
respective Affiliates.
9.2 Reliance by Agent. The Agent shall be entitled to rely upon any
-----------------
certification, notice, instrument, writing or other communication (including any
thereof by telephone or telecopy) believed by it to be genuine and correct and
to have been signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel for
any Credit Party), independent accountants and other experts selected by
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the Agent. The Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Agent receives and accepts
an Assignment and Acceptance executed in accordance with Section 10.3 hereof. As
to any matters not expressly provided for by this Agreement and the other Credit
Documents, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders (or to the extent specifically provided in Section 10.6,
all the Lenders), and such instructions shall be binding on all of the Lenders;
provided, however, that the Agent shall not be required to take any action that
-------- -------
exposes the Agent to personal liability or that is contrary to any Credit
Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
9.3 Defaults. The Agent shall not be deemed to have knowledge or notice
--------
of the occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 9.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
-------- ----
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
9.4 Rights as Lender. With respect to its Commitments and the Loans made
----------------
by it, NationsBank (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. NationsBank (and any successor
acting as Agent) and its Affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust or other
business with any Credit Party or any of its Subsidiaries or Affiliates as if it
were not acting as Agent, and NationsBank (and any successor acting as Agent)
and its Affiliates may accept fees and other consideration from any Credit Party
or any of its Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Secured
Parties.
9.5 Indemnification. The Lenders agree to indemnify the Agent (to the
---------------
extent not reimbursed under Section 10.5 hereof, but without limiting the
obligations of the Borrower under Section 10.5) ratably in accordance with their
respective Commitments (or, if the Commitments have expired or been terminated,
in accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements of any kind and nature
whatsoever that may at any time (including at any time following the final
payment of all of the obligations of the Borrower hereunder and under the other
Credit Documents) be imposed on, incurred by or
93
asserted against the Agent (including by any Lender) in any way relating to or
arising out of any Credit Document or the transactions contemplated thereby or
any action taken or omitted by the Agent under any Credit Document; provided
--------
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs or expenses payable by
the Borrower under Section 10.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower.
9.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly
---------------------------------------
acknowledges that the Agent has not made any representations or warranties to it
and that no act by the Agent hereinafter taken, including any review of the
affairs of any Credit Party or any of their respective Affiliates, shall be
deemed to constitute any representation or warranty by the Agent to any Secured
Party. Each Lender agrees that it has, independently and without reliance on the
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Consolidated Parties and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under the Credit
Documents. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of any Credit Party or any other Consolidated Party or any of their
Affiliates that may come into the possession of the Agent or any of its
Affiliates.
9.7 Resignation of Agent. The Agent may resign at any time by giving
--------------------
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $1,000,000,000. Upon the acceptance of any appointment
as Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 9 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
SECTION 10
MISCELLANEOUS
10.1 Notices. Except as otherwise expressly provided herein, all notices
-------
and other communications shall have been duly given and shall be effective (a)
when delivered, (b) when
94
transmitted via telecopy (or other facsimile device) to the number set forth
below, (c) on the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service or (d)
on the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case to the respective
parties at the address, in the case of the Borrower and the Agent, set forth
below, and, in the case of the Lenders, set forth on Schedule 1.1C, or at such
-------------
other address as such party may specify by written notice to the other parties
hereto:
if to the Borrower,
PSS World Medical, Inc.
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000; and
if to the Agent,
NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Roof, Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to
NationsBank, N. A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000.
10.2 Right of Set-Off. Upon the occurrence and during the continuance of
----------------
an Event of Default, each Lender (and each of its Affiliates) is authorized at
any time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, provisional or final) and any
other indebtedness at any time held or owing by such Lender (including branches,
agencies or Affiliates of such Lender wherever located) to or for the credit or
the account of any Credit Party against obligations and liabilities of such
Person to such Lender
95
(and its Affiliates) hereunder, under the Notes, under the other Credit
Documents or otherwise, irrespective of whether such Lender (or Affiliate) shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured. Any such set-off shall
be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender
subsequent thereto. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender (or any of its Affiliates);
provided, however, that the failure to give such notice shall not affect the
-------- -------
validity of such set-off and application. Any Person purchasing a Participation
Interest in the Loans and Commitments hereunder pursuant to Section 2.2(c), 3.13
or 10.3(d) may exercise all rights of setoff with respect to its Participation
Interest as fully as if such Person were a Lender hereunder. The rights of each
Lender (and its Affiliates) under this Section 10.2 are in addition to (and not
in limitation of) any other rights and remedies (including other rights of set-
off) that such Lender may have under applicable law or otherwise.
10.3 Benefit of Agreement. (a) Generally. This Agreement shall be binding
-------------------- ---------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that the Borrower may not assign or
--------
transfer any of its interests and obligations without prior written consent of
all the Lenders (and any such purported assignment or transfer without such
consent shall be void); provided further that the rights of each Lender to
-------- -------
transfer, assign or grant participations in its rights and/or obligations
hereunder shall be limited as set forth in this Section 10.3.
(b) Assignments. Each Lender may assign to one or more Eligible Assignees
-----------
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Loans, its Notes and its Commitments); provided,
--------
however, that
-------
(i) each such assignment shall be to an Eligible Assignee;
(ii) each such assignment shall be in an amount at least equal to
$5,000,000, except in the case of an assignment to another Lender or any
Affiliate of a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement;
(iii) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations in respect of
its Commitments under this Agreement and the other Credit Documents; and
(iv) the assignor and the assignee under such assignment shall
execute and deliver to the Agent for its acceptance an Assignment and
Acceptance, together with any Notes subject to such assignment and a
processing fee of $3,500.
Upon the later of (A) the execution, delivery and acceptance of such Assignment
and Acceptance and (B) the effective date specified in such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of such assignment, have the obligations, rights and benefits of a Lender under
this Agreement and the other Credit Documents and the assigning Lender shall, to
the extent of such assignment, relinquish its
96
rights and be released from its obligations under this Agreement and the other
Credit Documents. Upon the consummation of any assignment pursuant to this
Section 10.3(b), the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new promissory notes reflecting such
assignment are issued to the assignor and the assignee in the amount of their
respective interests and in substantially the form of the original Notes (but
with notation thereon that such new Notes are given in substitution for and
replacement of the original Notes or any replacements thereof). If the assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with Section
3.10.
(c) Register. The Agent shall maintain at its address referred to in
--------
Schedule 1.1C a copy of each Assignment and Acceptance delivered to and accepted
-------------
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts and Interest Periods of
the Loans of each Type owing to, each Lender from time to time (the "Register").
--------
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice. Upon its receipt of an Assignment and Acceptance
executed by the parties thereto, together with any Notes subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in accordance with the
applicable requirements hereof, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the parties thereto.
(d) Participations. Each Lender may sell participations to one or more
--------------
Persons in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and its Loans); provided,
--------
however, that (i) such Lender's obligations under this Agreement shall remain
-------
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the provisions contained in Sections 3.6, 3.9, 3.10
and 3.11 and the right of set-off contained in Section 10.2 on the same basis as
if it were a Lender, (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans, its Notes and its
Commitments (except for the obligations to such participant referred to in the
foregoing clause (iii)) and to approve any amendment, modification or waiver of
any provision of this Agreement (other than amendments, modifications or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Notes in which such participant is participating, extending any
scheduled principal payment date or scheduled interest payment date in respect
of such Loans or Notes in which such participant is participating, extending
such Commitments in which such participant is participating or, except as
expressly provided in the Credit Documents, releasing all or substantially all
the Collateral from the lien of the Collateral Documents or all or substantially
all the Subsidiary Guarantors from the Subsidiaries Guarantee Agreement) and (v)
subparticipations by any participant shall
97
be prohibited and (vi) each such participation shall be in an amount equal to at
least $5,000,000, except in the case of a participation to another Lender or any
Affiliate of a Lender or a participation of all of a Lender's rights and
obligations under this Agreement.
(e) Regulatory Matters. Notwithstanding any other provision set forth in
------------------
this Agreement, any Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(f) Information. Any Lender may furnish any information concerning any
-----------
Credit Party or any of its Subsidiaries or other Affiliates in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the provisions of
Section 10.14 hereof.
10.4 No Waiver; Remedies Cumulative. No failure or delay on the part of
------------------------------
the Agent or any other Secured Party in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Agent or any other Secured Party and any of the Credit Parties shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies of the Agent and the
other Secured Parties hereunder and under the other Credit Documents are
cumulative and not exclusive of any rights or remedies which the Agent or any
other Secured Party would otherwise have at law or otherwise. No notice to or
demand on any Credit Party in any case shall entitle the Borrower or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the other
Secured Parties to any other or further action in any circumstances without
notice or demand.
10.5 Expenses; Indemnification. (a) The Borrower agrees to pay on demand
-------------------------
all reasonable costs and expenses of the Agent in connection with the
syndication, preparation, execution, delivery, administration, modification and
amendment of this Agreement, the other Credit Documents and the other documents
to be delivered hereunder, including the reasonable fees and expenses of counsel
for the Agent (including the cost of internal counsel) with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under
the Credit Documents. The Borrower further agrees to pay on demand all
reasonable costs and expenses of the Agent and the Lenders, if any (including
reasonable attorneys' fees and expenses and the cost of internal counsel), in
connection with (i) the enforcement (whether through negotiations, legal
proceedings or otherwise) of the Credit Documents and the other documents to be
delivered hereunder, (ii) the restructure or workout of the Credit Obligations
(iii) any claim in respect of any of the Credit Obligations in any bankruptcy or
insolvency proceeding relating to any Credit Party.
(b) The Borrower agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
-----------------
any and all claims, damages,
98
losses, liabilities, costs and expenses (including reasonable attorneys' fees;
provided, that, the Indemnified Parties shall be entitled to select one primary
-------- ----
counsel and if necessary, one local counsel, of their choice to represent such
Indemnified Parties and the Borrower for each proceeding) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including in connection with any
investigation, litigation or proceeding or preparation of defense in connection
therewith) (i) the Credit Documents, any of the transactions contemplated herein
or the actual or proposed use of the proceeds of the Loans or of the Letters of
Credit or (ii) the presence or Release of any Materials of Environmental Concern
at, under or from any Property owned, operated or leased at any time before or
after the date hereof by any Consolidated Party, or the failure by any
Consolidated Party to comply with any Environmental Law, except to the extent
such claim, damage, loss, liability, cost or expense is found in a final, non-
appealable judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party's gross negligence or willful misconduct or from a
violation of Environmental Laws with respect to any real property or the
presence, release, use, generation, discharge, disposal, storage or similar
action regarding Materials of Environmental Concern with respect to any real
property, which violation or action first occurs after such real property is
transferred to any Indemnified Party or its successor or assignee by foreclosure
sale, deed in lieu of foreclosure or similar transfer (except to the extent
actually caused by any Consolidated Party). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 10.5(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Credit Party, its directors,
shareholders or creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees not to
assert any claim against the Agent, any Lender, any other Secured Party, any of
their Affiliates or any of their respective directors, officers, employees,
attorneys, agents and advisers, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Credit Documents, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Loans or of the Letters of Credit.
The Borrower shall not be liable under this Agreement for any settlement made by
any Indemnified Party without the Borrower's prior written consent (which
consent shall not be unreasonably withheld), and the Borrower agrees to
indemnify and hold harmless any Indemnified Party from and against any loss or
liability by reason of the settlement of any claim or action with the consent of
the Borrower. The Borrower shall not settle any claim or action without the
prior written consent of the Indemnified Parties, which consent shall not be
unreasonably withheld.
10.6 Amendments, Waivers and Consents. Neither this Agreement nor any
--------------------------------
other Credit Document nor any of the terms hereof or thereof may be amended,
modified or waived, unless such amendment, modification or waiver is in writing
entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that no such amendment, modification or waiver
-------- -------
shall:
(a) extend the final maturity of any Loan or the time of payment of any
reimbursement obligation (or any portion thereof) arising from a drawing under a
Letter of Credit, without the prior written consent of each Lender holding such
Loan or a Participation
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Interest in such Letter of Credit;
(b) reduce the rate of interest applicable to any Credit Obligation (other
than as a result of waiving the applicability of any post-default increase in
interest rates), extend the time of payment of any interest thereon (other than
as a result of waiving any mandatory prepayment), reduce any Fees payable
hereunder or extend the time of payment of any Fees hereunder, without the prior
written consent of each Lender to whom such interest, Credit Obligation or Fee
is owed;
(c) reduce or waive the principal amount of any Loan or of any
reimbursement obligation (or any portion thereof) arising from a drawing under a
Letter of Credit, without the prior written consent of each Lender holding such
Loan or a Participation interest in such Letter of Credit;
(d) increase the Commitment of a Lender over the amount thereof in effect
or extend the date fixed for the termination of the Commitment of a Lender (it
being understood and agreed that a waiver of any Default or Event of Default
shall not constitute an increase in the terms of any Commitment of any Lender),
without the prior written consent of such Lender;
(e) release all or substantially all of the Collateral from the Lien of
the Collateral Documents (except as expressly provided in the Credit Documents),
without the prior written consent of each Lender; provided, however, that the
-------- -------
Agent may release Receivables of the Borrower from the Lien of the Collateral
Documents with respect to a Permitted Receivables Securitization and permit a
Lien to be granted in favor of the purchaser in a Permitted Receivables
Securitization and from other assets that are the subject of an Asset
Disposition permitted hereunder;
(f) release the Borrower or, except as expressly provided in the Credit
Documents, all or substantially all of the Subsidiary Guarantors from its or
their obligations under the Credit Documents, without the prior written consent
of each Lender;
(g) consent to the assignment or transfer by the Borrower or, except as
expressly provided in the Credit Documents, all or substantially all the
Subsidiary Guarantors of its or their rights and obligations under or in respect
of the Credit Documents, without the prior written consent of each Lender;
(h) amend, modify or waive any provision of this Section 10.6 or Section
3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 8.1(a), 10.2, 10.3, 10.5 or 10.9,
without the prior written consent of each Lender;
(i) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders, or otherwise change the percentage of the
Commitments, the percentage of the aggregate unpaid principal amount of the
Notes or the number of Lenders which shall be required for the Lenders or any of
them to take action under any provision of this Agreement or any other Credit
Document, without the prior written consent of each Lender;
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(j) increase the total Commitments or otherwise increase the aggregate
principal amount of obligations which are secured by the Collateral, without the
prior written consent of each Lender;
(k) extend the time for, reduce the amount of or modify the manner of
application of proceeds of any mandatory prepayment required by Section
3.3(b)(ii) without the prior written consent of the Required Lenders;
(l) effect any waiver of the conditions to funding any Revolving Loan or
to issuing any Letter of Credit, without the prior written consent of Lenders
having in the aggregate at least a majority of the outstanding principal amount
of Revolving Loans, LOC Obligations and Unused Revolving Credit Commitments;
(m) effect any waiver, amendment or modification of Section 7.8(a) with
respect to the subordination provisions of any Indebtedness, without the prior
written consent of the Required Lenders;
(n) amend any provision of Section 9 or otherwise affect any rights or
duties of the Agent, without the prior written consent of the Agent; or
(o) amend any provision of Section 2.2 or otherwise affect any rights or
duties of the Issuing Lender, without the prior written consent of the Issuing
Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding. The various
requirements of this Section 10.6 are cumulative. Each Lender and each holder of
a Note shall be bound by any waiver, amendment or modification authorized by
this Section 10.6 regardless of whether its Note shall have been marked to make
reference thereto, and any consent by any Lender or holder of a Note pursuant to
this Section 10.6 shall bind any Person subsequently acquiring a Note from it,
whether or not such Note shall have been so marked.
10.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile by
any of the parties hereto of an executed counterpart of this Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered,
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Agreement.
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10.8 Headings. Section headings and the Table of Contents used herein
--------
are for convenience of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
10.9 Survival. All indemnities set forth herein, including those set
--------
forth in Sections 2.2(i), 3.6, 3.10, 3.11, 9.5 and 10.5, shall survive the
execution and delivery of this Agreement, the making of the Loans, the issuance
of the Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents, the termination of the Commitments
hereunder and the termination of this Agreement. All representations and
warranties made by the Borrower herein shall survive delivery of the Notes, the
making of the Loans hereunder and the issuance of the Letters of Credit
hereunder.
10.10 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
------------------------------------------------
AGREEMENT AND THE OTHER CREDIT DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND OTHER
THAN AS EXPRESSLY SET FORTH IN SUCH OTHER CREDIT DOCUMENTS) AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
AND, AS TO MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, THE LAWS OF THE STATE
OF NEW YORK. Any legal action or proceeding with respect to this Agreement or
any other Credit Document may be brought in the courts of the State of New York
in New York County, or of the United States for the Southern District of New
York, and, by execution and delivery of this Agreement, the Borrower hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. The Borrower
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set forth for notices pursuant to Section 10.1, such service to become effective
three (3) days after such mailing. Nothing herein shall affect the right of the
Agent or any Lender to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Credit Party in
any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in subsection (a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) With respect to any Credit Party which is not incorporated or
organized under the laws of any State of the United States or the District of
Columbia:
102
(i) Without limiting the generality of subsections (a) and (b) of
this Section 10.10, such Credit Party agrees that any controversy or claim
with respect to it arising out of or relating to this Agreement or any
other Credit Document may, at the option of the Agent and the Lenders, be
settled immediately by submitting the same to binding arbitration in the
City of New York, New York (or such other place as the parties may agree)
in accordance with the Commercial Arbitration Rules then obtaining of the
American Arbitration Association. Upon the request and submission of any
controversy or claim for arbitration hereunder, the Agent shall give such
Credit Party not less than 45 days' written notice of the request for
arbitration, the nature of the controversy or claim, and the time and place
set for arbitration. Such Credit Party agrees that such notice is
reasonable to enable it sufficient time to prepare and present its case
before the arbitration panel. Judgment on the award rendered by the
arbitration panel may be entered in any court in which any action could
have been brought or maintained pursuant to subparagraph (v) below,
including any court of the State of New York or any Federal court sitting
in the State of New York. The expenses of arbitration shall be paid by such
Credit Party.
(ii) The provisions of subparagraph (i) above are intended to comply
with the requirements of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the "Convention"). To the extent that any
----------
provisions of such subparagraph (i) are not consistent with or fail to
conform to the requirements set forth in the Convention, such subparagraph
(i) shall be deemed amended to conform to the requirements of the
Convention.
(iii) Such Credit Party hereby specifically consents and submits to
the jurisdiction of the courts of the State of New York and courts of the
United States located in the State of New York for purposes of entry of a
judgment or arbitration award entered by the arbitration panel.
(iv) Such Credit Party hereby irrevocably appoints the Borrower,
with an address on the date hereof at ____________________________________
(the "New York Process Agent"), as process agent in its name, place and
----------------------
stead to receive and forward service of any and all writs, summonses and
other legal process in any suit, action or proceeding brought in the State
of New York, agrees that such service in any such suit, action or
proceeding may be made upon the New York Process Agent and agrees to take
all such action as may be necessary to continue said appointment in full
force and effect or to appoint another agent so that such Credit Party will
at all times have an agent in the State of New York for service of process
for the above purposes.
(v) The guarantee of such Credit Party under the Credit Documents
is (in part) an international transaction in which payment of dollars in
New York, New York, is of the essence, and dollars shall be the currency of
account in all events. The payment obligation of such Credit Party shall
not be discharged by an amount paid in another currency or in another
place, whether pursuant to a judgment or otherwise, to
103
the extent that the amount so paid on prompt conversion to dollars and
transfer to New York, New York, under normal banking procedures does not
yield the amount of dollars in New York, New York due hereunder. In the
event that any payment by such Credit Party, whether pursuant to a judgment
or otherwise, upon conversion and transfer does not result in payment of
such amount of dollars in New York, New York, the Agent and the other
Secured Parties shall have a separate cause of action against such Credit
Parties for the additional amount necessary to yield the amount due and
owing to the Agent and the other Secured Parties.
(d) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS AND THE
BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF
THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.11 Severability. If any provision of any of the Credit Documents is
------------
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
10.12 Entirety. This Agreement and the other Credit Documents represent
--------
the entire agreement of the parties hereto and thereto regarding the subject
matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, if any (including any commitment letters or correspondence)
relating to such subject matters. Nothing in this Agreement or any other Credit
Document, expressed or implied, is intended to confer upon any party (other than
the parties hereto and thereto and the other Secured Parties) any rights,
remedies, obligations or liabilities under or by reason of this Agreement and
the other Credit Documents.
10.13 Binding Effect; Termination. (a) This Agreement shall become
---------------------------
effective at such time on or after the Closing Date when it shall have been
executed by the Borrower and the Agent, and the Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Agreement shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and their respective
permitted successors and assigns.
(b) The term of this Agreement shall be until no Loans, LOC Obligations
or any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, no Letters of Credit shall be outstanding,
all of the Credit Obligations have been irrevocably satisfied in full and all of
the Commitments hereunder shall have expired or been terminated.
10.14 Confidentiality. Each of the Agent and the Lenders (each, a
---------------
"Lending Party")
-------------
104
agrees to keep confidential any information furnished or made available to it by
any Credit Party pursuant to this Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
--------
such information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, employee, agent or advisor of any Lending Party
or Affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facilities provided herein, (c)
as required by any law, rule or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Agreement, (g) in connection with any
litigation to which such Lending Party or any of its Affiliates may be a party,
(h) to the extent necessary in connection with the exercise of any remedy under
this Agreement or any other Credit Document, (i) subject to provisions
substantially similar to those contained in this Section 10.14, to any actual or
proposed participant or assignee and (j) to the extent that the Borrower shall
have consented in writing to such disclosure. Nothing set forth in this Section
10.14 shall obligate the Agent or any Lender to return any materials furnished
by the Credit Parties.
10.15 Source of Funds. Each of the Lenders hereby represents and warrants
---------------
to the Borrower that at least one of the following statements is an accurate
representation as to the source of funds to be used by such Lender in connection
with the financing hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee benefit
plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such Lender
has disclosed to the Borrower the name of each employee benefit plan whose
assets in such account exceed 10% of the total assets of such account as of
the date of such purchase (and, for purposes of this subsection (b), all
employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets of
an insurance company's general account, such insurance company has complied
with all of the requirements of the regulations issued under Section
401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the Borrower.
As used in this Section 10.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
10.16 Conflict. To the extent that there is a conflict or inconsistency
--------
between any provision hereof, on the one hand, and any provision of any other
Credit Document, on the other hand, this Agreement shall control.
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[Signature Page to Follow]
106
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: PSS WORLD MEDICAL, INC.,
--------
a Florida corporation
By: _________________________
Name: _____________________
Title: ________________________
107
LENDERS: NATIONSBANK, N. A.,
-------
individually in its capacity as a
Lender and in its capacity as Agent
and Issuing Lender
By:_________________________
Name:____________________
Title:______________________
Domestic Lending Office:
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Roof, Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Eurodollar Lending Office:
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Roof, Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", New York Branch
By:___________________________
Name:_____________________
Title:________________________
Domestic Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Eurodollar Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
108
Telecopy: 000-000-0000
109
BANKERS TRUST COMPANY
By:___________________________
Name:_____________________
Title:________________________
Domestic Lending Office:
000 Xxxxxxx Xxxxxx - X00000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Eurodollar Lending Office:
000 Xxxxxxx Xxxxxx - X00000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Eurodollar Lending Office:
SUNTRUST BANK, NORTH FLORIDA, N.A.
By:___________________________
Name:_____________________
Title:________________________
Domestic Lending Office:
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Eurodollar Lending Office:
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
110
FIRST UNION NATIONAL BANK
By:___________________________
Name:_____________________
Title:________________________
Domestic Lending Office:
Xxx Xxxxx Xxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Eurodollar Lending Office:
Xxx Xxxxx Xxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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