Exhibit 10.10
REVOLVING CREDIT AGREEMENT
Dated as of January 26, 1999
By And Among
XXXXXX SUPPLY, INC.
AND
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
FIRST UNION NATIONAL BANK,
individually and as Documentation Agent,
NATIONSBANK, N.A.,
individually and as Syndication Agent
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
individually and as Co-Agent,
ABN AMRO BANK, N.V.,
PNC BANK, N.A.,
WACHOVIA BANK, N.A.,
THE FIFTH THIRD BANK,
HIBERNIA NATIONAL BANK, and
other financial institutions becoming a party hereto
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King & Spalding
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx Xxxxxx
(000) 000-0000
TABLE OF CONTENTS
Page
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Article I. DEFINITIONS; CONSTRUCTION..........................................................................1
Section 1.01 Definitions...................................................................................1
Section 1.02 Accounting Terms and Determination...........................................................16
Section 1.03 Other Definitional Terms.....................................................................17
Section 1.04 Exhibits and Schedules.......................................................................17
Article II. REVOLVING LOAN COMMITMENTS........................................................................17
Section 2.01 Revolving Loan Commitments, Use of Proceeds..................................................17
Section 2.02 Syndicate Note; Repayment of Principal.......................................................18
Section 2.03 Voluntary Reduction of Revolving Loan Commitments............................................18
Article III. GENERAL LOAN TERMS..............................................................................18
Section 3.01 Funding Notices..............................................................................18
Section 3.02 Disbursement of Funds........................................................................20
Section 3.03 Increase of Revolving Loan Commitments.......................................................22
Section 3.04 Interest.....................................................................................23
Section 3.05 Interest Periods.............................................................................24
Section 3.06 Fees.........................................................................................25
Section 3.07 Voluntary Prepayments of Borrowings..........................................................25
Section 3.08 Payments, etc................................................................................26
Section 3.09 Interest Rate Not Ascertainable, etc.........................................................28
Section 3.10 Illegally....................................................................................28
Section 3.11 Increased Costs..............................................................................29
Section 3.12 Lending Offices..............................................................................30
Section 3.13 Funding Losses...............................................................................31
Section 3.14 Assumptions Concerning Funding of Eurodollar Advances........................................31
Section 3.15 Apportionment of Payments....................................................................31
Section 3.16 Sharing of Payments, Etc.....................................................................32
Section 3.17 Capital Adequacy.............................................................................32
Section 3.18 Benefits to Guarantors.......................................................................33
Section 3.19 Limitation on Certain Payment Obligations....................................................33
Article IV. CONDITIONS TO BORROWINGS........................................................................33
Section 4.01 Conditions Precedent to Initial Revolving Loans..............................................33
Section 4.02 Conditions to All Revolving Loans............................................................35
Article V. REPRESENTATIONS AND WARRANTIES....................................................................36
Section 5.01 Organization and Qualification...............................................................36
Section 5.02 Corporate Authority..........................................................................37
Section 5.03 Financial Statements.........................................................................37
Section 5.04 Tax Returns..................................................................................37
Section 5.05 Actions Pending..............................................................................38
Section 5.06 Representations; No Defaults.................................................................38
Section 5.07 Title to Properties..........................................................................38
Section 5.08 Enforceability of Agreement..................................................................38
Section 5.09 Consent......................................................................................39
Section 5.10 Use of Proceeds, Federal Reserve Regulations.................................................39
Section 5.11 ERISA........................................................................................39
Section 5.12 Subsidiaries.................................................................................39
Section 5.13 Outstanding Indebtedness.....................................................................40
Section 5.14 Conflicting Agreements.......................................................................40
Section 5.15 Pollution and Other Regulations..............................................................40
Section 5.16 Possession of Franchises, Licenses, Etc......................................................41
Section 5.17 Patents, Etc.................................................................................41
Section 5.18 Governmental Consent.........................................................................42
Section 5.19 Disclosure...................................................................................42
Section 5.20 Insurance Coverage...........................................................................42
Section 5.21 Labor Matters................................................................................42
Section 5.22 Intercompany Loans, Dividends................................................................42
Section 5.23 Burdensome Restrictions......................................................................43
Section 5.24 Investment Company Act, Etc..................................................................43
Section 5.25 Notice of Non-Compliance with Laws...........................................................43
Section 5.26 Year 2000 Issues.............................................................................43
Article VI. AFFIRMATIVE COVENANTS...........................................................................43
Section 6.01 Corporate Existence, Etc.....................................................................43
Section 6.02 Compliance with Laws, Etc....................................................................44
Section 6.03 Payment of Taxes and Claims, Etc.............................................................44
Section 6.04 Keeping of Books.............................................................................44
Section 6.05 Visitation, Inspection, Etc..................................................................44
Section 6.06 Insurance, Maintenance of Properties.........................................................45
Section 6.07 Reporting Covenants..........................................................................45
Section 6.08 Financial Covenants..........................................................................49
Section 6.09 Notices Under Certain Other Indebtedness.....................................................50
Section 6.10 Additional Guarantors........................................................................50
Section 6.11 Financial Statements; Fiscal Year............................................................50
Section 6.12 Ownership of Guarantors......................................................................50
Article VII. NEGATIVE COVENANTS..............................................................................51
Section 7.01 Indebtedness.................................................................................51
Section 7.02 Liens........................................................................................51
Section 7.03 Mergers, Acquisitions, Sales, Etc............................................................52
Section 7.04 Investments, Loans, Etc......................................................................53
Section 7.05 Sale and Leaseback Transactions..............................................................54
Section 7.06 Transactions with Affiliates.................................................................54
Section 7.07 Optional Prepayments.........................................................................54
Section 7.08 Changes in Business..........................................................................54
Section 7.09 ERISA........................................................................................55
Section 7.10 Additional Negative Pledges..................................................................55
Section 7.11 Limitation on Payment Restrictions Affecting Consolidated Companies..........................55
Section 7.12 Actions Under Certain Documents..............................................................55
Article VIII. EVENTS OF DEFAULT............................................................................55
Section 8.01 Payments.....................................................................................56
Section 8.02 Covenants Without Notice.....................................................................56
Section 8.03 Other Covenants..............................................................................56
Section 8.04 Representations..............................................................................56
Section 8.05 Non-Payments of Other Indebtedness...........................................................56
Section 8.06 Defaults Under Other Agreements..............................................................56
Section 8.07 Bankruptcy...................................................................................56
Section 8.08 ERISA........................................................................................57
Section 8.09 Money Judgment...............................................................................57
Section 8.10 Ownership of Credit Parties and Pledged Entities.............................................58
Section 8.11 Change in Control of Borrower................................................................58
Section 8.12 Default Under Other Credit Documents.........................................................58
Section 8.13 Attachments..................................................................................58
Article IX. THE AGENTS......................................................................................59
Section 9.01 Appointment of Administrative Agent..........................................................59
Section 9.02 Nature of Duties of Administrative Agent.....................................................59
Section 9.03 Lack of Reliance on the Administrative Agent.................................................59
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Section 9.04 Certain Rights of the Administrative Agent...................................................60
Section 9.05 Reliance by Administrative Agent.............................................................60
Section 9.06 Indemnification of Administrative Agent......................................................60
Section 9.07 The Administrative Agent in Its Individual Capacity..........................................61
Section 9.08 Holders of Revolving Notes...................................................................61
Section 9.09 Successor Administrative Agent...............................................................61
Section 9.10 Documentation Agent..........................................................................62
Section 9.11 Syndication Agent............................................................................62
Section 9.12 Co-Agent.....................................................................................62
Article X. MISCELLANEOUS.....................................................................................62
Section 10.01 Notices......................................................................................62
Section 10.02 Amendments, Etc..............................................................................63
Section 10.03 No Waiver, Remedies Cumulative...............................................................63
Section 10.04 Payment of Expenses, Etc.....................................................................64
Section 10.05 Right of Setoff..............................................................................65
Section 10.06 Benefit of Agreement.........................................................................65
Section 10.07 Governing Law; Submission to Jurisdiction....................................................68
Section 10.08 Independent Nature of Lenders' Rights........................................................69
Section 10.09 Counterparts.................................................................................69
Section 10.10 Effectiveness; Survival......................................................................69
Section 10.11 Severability.................................................................................69
Section 10.12 Independence of Covenants....................................................................69
Section 10.13 Change in Accounting Principles, Fiscal Year or Tax Laws.....................................69
Section 10.14 Headings Descriptive, Entire Agreement.......................................................70
Section 10.15 Time is of the Essence.......................................................................70
Section 10.16 Usury........................................................................................70
Section 10.17 Construction.................................................................................70
Section 10.18 Waiver of Effect of Corporate Seal...........................................................70
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of January 26,1999 (the
"Agreement") by and among XXXXXX SUPPLY, INC. ("Borrower"), a Florida
corporation, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, ("SunTrust
Bank, Central Florida") a national banking association, FIRST UNION NATIONAL
BANK, a national banking association, NATIONSBANK, N.A., a national banking
association, SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, ABN AMRO BANK, N.V., a banking corporation organized under the laws
of the Netherlands, PNC BANK, N.A., a national banking association, WACHOVIA
BANK, N.A., a national banking association, THE FIFTH THIRD BANK, a national
banking association, HIBERNIA NATIONAL BANK, a national banking association and
such other financial institutions becoming a party hereto from time to time,
(individually, a "Lender" and collectively, the "Lenders"), SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), FIRST UNION NATIONAL BANK, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), NATIONSBANK, N.A., as syndication agent for the Lenders (in such
capacity, the "Syndication Agent") and SOUTHTRUST BANK NATIONAL ASSOCIATION, as
Co-Agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders establish a $225,000,000
revolving credit facility in favor of Borrower, and subject to the terms and
conditions contained herein, the Lenders are willing to establish such revolving
credit facility in favor of Borrower subject to the terms and conditions set
forth below;
NOW, THEREFORE, in consideration of the mutual covenants made herein, amid
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
Article I.
DEFINITIONS; CONSTRUCTION
Section 1.01 Definitions. As used in this Agreement, and in any instrument,
certificate, document or report delivered pursuant hereto, the following terms
shall have the following meanings (to be equally applicable to both the singular
and plural forms of the term defined):
"Administrative Agent" shall mean SunTrust Bank, Central Florida, a
national banking association, as administrative agent for the Lenders hereunder
and under the other Credit Documents, and each successor administrative agent.
"Adjusted LIBO Rate" shall mean with respect to each Interest Period for a
Eurodollar Advance, the rate obtained by dividing (A) LIBOR for such Interest
Period by (B) a percentage equal to I minus the then stated maximum rate (stated
as a decimal) of all reserves requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable to any
member bank of the Federal Reserve System in respect of Eurodollar liabilities
as defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D). The Administrative Agent shall promptly notify the
Borrower of any such reserve requirements that become applicable.
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under the Revolving Loans, which Advance shall be made
or outstanding as a Base Rate Advance, Competitive Bid Advance or Eurodollar
Advance, as the case may be.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by, or under common control with, such Person, whether
through the ownership of voting securities, by contract or otherwise. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by", and "under common control With") as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person.
"Agents" shall mean, collectively, the Administrative Agent, the
Documentation Agent, the Syndication Agent and the Co-Agent.
"Agreement" shall mean this Revolving Credit Agreement, either as
originally executed or as it may be from time to time supplemented, amended,
restated, renewed or extended and in effect.
"Applicable Facility Fee Percentage" shall mean the percentage designated
below based on Borrower's Leverage Ratio for the most recently ended fiscal
quarter for which financial statements have been delivered pursuant to Section
6.07(a) or (b):
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Leverage Ratio Applicable Facility Fee
Percentage for Revolving
Loan Commitment:
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Less than 0.4: 1.0 0.15%
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Greater than or equal to 0.4: 1.0 0.175%
but less than 0.45:1.0
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Greater than or equal to 0.20%
0.45: 1.0 but less than 0.5: 1.0
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Greater than or equal to 0.5:1.0 0.25%
but less than 0.55:1.0
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Greater than or equal to 0.30%
0.55:1.0
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provided, however, that:
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(a) The Applicable Facility Fee Percentage in effect as of the date of
execution and delivery of this Agreement is .20% for Revolving Loan
Commitments, and such percentage shall remain in effect until such time as
the Applicable Facility Fee Percentage may be adjusted as hereinafter
provided; and
(b) Adjustments, if any, to the Applicable Facility Fee Percentages
based on changes in the ratios set forth above shall be made and become
effective (i) on the first day of the fiscal quarter immediately following
delivery of the financial statements required pursuant to Section 6.07(b),
and (ii) on the first day of the second fiscal quarter immediately
following the last day of any fiscal year of Borrower.
(c) Notwithstanding the foregoing, at any time during which Borrower
has failed to deliver the financial statements and certificates when
required by Section 6.07(a) and (b), as the case may be, the Applicable
Facility Fee Percentage shall be 0.30% until such time as the delinquent
financial statements are delivered at which time the Applicable Facility
Fee Percentage shall be reset as provided above.
"Applicable Margin" shall mean the percentage designated below based on
Borrower's Leverage Ratio for the most recently ended fiscal quarter for which
financial statements have been delivered pursuant to Section 6.07(a) or (b):
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Leverage Ratio Applicable Margin for
Revolving Loan
Commitment:
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Less than 0.4: 1.0 0.25%
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Greater than or equal to 0.325%
0.4: 1.0 but less than 0.45: 1.0
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Greater than or equal to 0.55%
0.45: 1.0 but less than 0.5: 1.0
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Greater than or equal to 0.625%
0.5: 1.0 but less than 0.55: 1.0
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Greater than or equal to 0.825%
0.55:1.0
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provided, however, that:
(a) The Applicable Margin in effect as of the date of execution and
delivery of this Agreement is .55% for Revolving Loan Commitments, and such
percentage shall remain in effect until such time as the Applicable Margin
may be adjusted as hereinafter provided; and
(b) Adjustments, if any, to the Applicable Margin based on changes in
the ratios set forth above shall be made and become effective (i) on the
first day of the fiscal quarter immediately following delivery of the
financial statements required pursuant to Section
3
6.07(b), and (ii) on the first day of the second fiscal quarter immediately
following the last day of any fiscal year of Borrower.
(c) Notwithstanding the foregoing, at any time during which Borrower
has failed to deliver the financial statements and certificates when
required by Section 6.07(a) and (b), as the case may be, the Applicable
Margin shall be 0.825% until such time as the delinquent financial
statements are delivered at which time the Applicable Margin shall be reset
as provided above.
"Asbestos Laws" means the common law in all federal, state and local and
foreign jurisdictions and other laws in such jurisdictions, and regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, now or hereafter in affect relating to or concerning
asbestos or asbestos-containing material, including without limitation, exposure
to asbestos or asbestos-containing material.
"Asset Value" shall mean, with respect to any property or asset of any
Consolidated Company as of any particular date, an amount equal to the greater
of (i) the then book value of such property or asset as established in
accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an Eligible Assignee in accordance with the terms of this
Agreement and substantially in the form of Exhibit D.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as amended and in
effect from time to time (11 U.S.C. ss. 101 et seq..).
"Base Rate" shall mean (with any change in the Base Rate to be effective as
of the date of change of either of the following rates) the higher of (a) the
rate which the Administrative Agent designates from time to time to be its prime
lending rate, as in effect from time to time, and (b) the Federal Funds Rate, as
in effect from time to time, plus one-half of one percent (0.500A) per annum.
The Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers;
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance bearing interest based on the
Base Rate.
"Base Rate Loan" shall mean any Revolving Loan hereunder which bears
interest at the Base Rate.
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"Borrowing" shall mean the incurrence by Borrower under any Facility of
Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean, with respect to Eurodollar Loans, any day other
than a day on which commercial banks are closed or required to be closed for
domestic and international business, including dealings in Dollar deposits on
the London interbank market, and with respect to all other Revolving Loans and
matters, any day other than Saturday, Sunday and a day on which commercial banks
are required to be closed for business in Atlanta, Georgia, or Orlando, Florida.
"Capitalized Lease Obligations" shall mean all lease obligations which have
been or are required to be, in accordance with GAAP, capitalized on the books of
the lessee.
"CERCLA" has the meaning set forth in Section 5.15(a) of this Agreement.
"Change in Control Provision" shall mean any term or provision contained in
any indenture, debenture, note, or other agreement or document evidencing or
governing Indebtedness of Borrower evidencing debt or a commitment to extend
loans in excess of $5,000,000 Which requires, or pen-nits the holder(s) of such
Indebtedness of Borrower to require that such Indebtedness of Borrower be
redeemed, repurchased, defeased, prepaid or repaid, either in whole or in part,
or the maturity of such Indebtedness of Borrower to be accelerated in any
respect, as a result of a change in ownership of the capital stock of Borrower
or voting rights with respect thereto.
"Closing Date" shall mean the date on or before January 26, 1999, on which
the initial Revolving Loans are made and the conditions set forth in Section
4.01 are satisfied or waived in accordance with Section 10.02.
"Co-Agent" shall mean SouthTrust Bank, National Association, a national
banking association, as co-agent for the Lenders hereunder and under the other
Credit Documents, and each successor co-agent.
"Commitment Letter" shall mean that certain letter agreement, dated as of
December 21, 1998, executed by SunTrust Equitable Securities Corporation,
SunTrust Bank, Central Florida, National Association and First Union National
Bank and acknowledged and agreed to by the Borrower.
"Competitive Bid Advance" shall mean an Advance bearing interest based on a
Competitive Bid Rate.
"Competitive Bid Loans" shall mean Revolving Loans made by a Lender on a
competitive bid basis as provided in Article 11.
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"Competitive Bid Note" shall mean a promissory note evidencing Competitive
Bid Loans in the form attached hereto as Exhibit B.
"Competitive Bid Rate" shall mean the interest rate charged by a Lender on
a Competitive Bid Loan.
"Consolidated Amortization" shall mean, for any fiscal period of the
Borrower, amortization of the Consolidated Companies for such period determined
on a consolidated basis in accordance with GAAP.
"Consolidated Companies" shall mean, collectively, Borrower and all of its
Subsidiaries.
"Consolidated Depreciation" shall mean, for any fiscal period of the
Borrower, depreciation of the Consolidated Companies for such period determined
on a consolidated basis in accordance with GAAP.
"Consolidated EBITR" shall mean, for any fiscal period of the Borrower, an
amount equal to Consolidated Net Income (Loss) for such period, plus, to the
extent deducted in determining Consolidated Net Income (Loss), (i) Consolidated
Tax Expense for such period, (ii) Consolidated Interest Expense for such period,
and (iii) Consolidated Rental Expense for such period.
"Consolidated EBITDAR" shall mean, for any fiscal period of the Borrower,
an amount equal to Consolidated Net Income (Loss) for such period plus to the
extent deducted in determining Consolidated Net Income (Loss), (i) Consolidated
Interest Expense for such period, (ii) Consolidated Tax Expense for such period,
(iii) Consolidated Depreciation for such period, (iv) Consolidated Amortization
for such period and (v) Consolidated Rental Expense for such period.
"Consolidated Interest Expense" shall mean, for any fiscal period of
Borrower, total interest expense (including without limitation, interest expense
attributable to capitalized leases in accordance with the GAAP and any program
costs incurred by Borrower in connection with sales of accounts receivable
pursuant to a securitization program) of the Consolidated Companies for such
period, determined on a consolidated basis.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period of
Borrower, the net income (or loss) of the Consolidated Companies for such period
(taken as a single accounting period) determined on a consolidated basis in
conformity with GAAP; provided that there shall be excluded therefrom (i) any
items of gain or loss which were included in determining such Consolidated Net
Income and were not realized in the ordinary course of business or the result of
a sale of assets other than in the ordinary course of business; and (ii) the
income (or loss) of any party accrued prior to the date such becomes a
Subsidiary of Borrower or is merged into or consolidated with Borrower or any of
its Subsidiaries, or such party's assets are
6
acquired by any Consolidated Company, unless such party is acquired in a
transaction accounted for as a pooling of interests.
"Consolidated Net Worth" shall mean as of the date of determination, the
Borrower's total shareholder's equity of such date as determined in accordance
with GAAP.
"Consolidated Rental Expense" shall mean, for any fiscal period of Borrower
total operating lease expense of the Consolidated Companies for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Tax Expense" shall mean, for any fiscal period of the
Borrower, tax expense of the Consolidated Companies for such period determined
on a consolidated basis in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Credit Documents" shall mean, collectively, this Agreement, the Revolving
Notes, the Guaranty Agreements, and all other Guaranty Documents, if any.
"Credit Parties" shall mean, collectively, each of Borrower, the
Guarantors, and every other Person who, from time to time, executes a Credit
Document with respect to all or any portion of the Obligations.
"Default" shall mean any condition or event which, with notice or lapse of
time or both, would constitute an Event of Default.
"Documentation Agent" shall mean First Union National Bank, a national
backing association, as documentation agent for the Lenders hereunder and under
the other Credit Documents, and each successor documentation agent.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money of the
United States of America.
"Eligible Assignee" shall mean (i) a commercial bank organized under the
laws of the United States of America, or any state thereof, or organized under
the laws of any other country with a Lending Office in the United States of
America, having total assets in excess of $1,000,000,000 or any commercial
finance or asset based lending Affiliate of any such commercial bank and (ii)
any Lender or any Affiliate of any Lender.
"Environmental Laws" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, now or hereafter in effect (including, without limitation,
Asbestos Laws), relating to pollution or protection of the environment and
relating to public health and safety, relating to (i) emissions,
7
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents, substances or wastes,
including without limitation, any Hazardous Substance, petroleum including crude
oil or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law into the environment (including
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law, and (iii) underground storage tanks and related piping, and emissions,
discharges and releases or threatened releases therefrom, such Environmental
Laws to include, without limitation (i) the Clean Air Act (42 U.S.C.ss.7401 et
seq.), (ii) the Clean Water Act (33 U.S.C.ss.1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C.ss.6901 et seq..), (iv) the Toxic
Substances Control Act (15 U.S.C.ss.2601 et seq.) and (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 X.X.X.xx. 9601 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each trade or
business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance bearing interest based on the
Adjusted LIBO Rate.
"Eurodollar Loan" shall mean any Revolving Loan hereunder which bears
interest based on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning set forth in Article VIII.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute thereto.
"Executive Officer" shall mean with respect to any Person (other than a
Guarantor), the President, Vice Presidents, Chief Financial Officer, Treasurer,
Secretary and any Person holding comparable offices or duties, and with respect
to a Guarantor, the President.
"Extension of Credit" shall mean the making of a Revolving Loan or the
conversion of a Revolving Loan of one Type into a Revolving Loan of another
Type.
"Facility" or "Facilities" shall mean the Revolving Loan Commitments and
Revolving Loans.
8
"Facility Fee" shall have the meaning assigned to such term in Section
3.06(a).
"Federal Funds Rate" shall mean for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of Atlanta, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Letter" shall mean that certain letter agreement, dated as of December
21, 1998, executed by SunTrust Equitable Securities Corporation, SunTrust Bank,
Central Florida and First Union National Bank and acknowledged and agreed to by
the Borrower, pursuant to which the Borrower agreed to pay certain fees set
forth in such letter agreement.
"Fees" shall mean, collectively, the Facility Fee and any other fees
specified in the Fee Letter.
"Final Maturity Date" shall mean the date on which all commitments have
been terminated and all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the provisions
of Article VIII.
"Fixed Charge Coverage Ratio" shall mean, as of any date of determination,
the ratio of (A) Consolidated EBITDAR to (B) the sum of (i) Consolidated
Interest Expense plus (ii) Consolidated Rental Expense, in each case measured
for the four fiscal quarter period ending on such date (or if such date is not
the last day of any fiscal quarter, for the four fiscal quarter period ending
immediately prior to such date).
"GAAP" shall mean generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Guaranteed Indebtedness" shall mean, as to any Person, any obligation of
such Person guaranteeing any indebtedness, lease, dividend, or other obligation
("primary obligation") of any other Person (the "primary obligor") in any manner
including, without limitation, any obligation or arrangement of such Person (a)
to purchase or repurchase any such primary obligation, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary
9
obligation, or (d) to indemnify the owner of such primary obligation against
loss in respect thereof.
"Guarantors" shall mean, collectively, each Material Subsidiary of the
Borrower that has executed the Guaranty Agreement as of the Closing Date,
together with all other Material Subsidiaries that hereafter execute supplements
to the Guaranty Agreement, and their respective successors and permitted
assigns.
"Guaranty Agreement" shall mean the Subsidiary Guaranty Agreement, dated as
of the date hereof, executed by certain of Borrower's Subsidiaries in favor of
the Lenders and the Administrative Agent, as the same may be amended, restated
or supplemented from time to time.
"Guaranty Documents" shall mean, collectively, the Guaranty Agreement, and
each other guaranty agreement, mortgage, deed of trust, security agreement,
pledge agreement, or other security or collateral document guaranteeing or
securing the Obligations, as the same may be amended, restated, or supplemented
from time to time.
"Hazardous Materials" shall mean oil, petroleum or chemical liquids or
solids, liquid or gaseous products, asbestos, or any other hazardous waste or
hazardous substances, including, without limitation, hazardous medical waste or
any other substance described in any Hazardous Materials Law.
"Hazardous Materials Law" shall mean the Comprehensive Environmental
Response Compensation and Liability Act as amended by the Super Fund Amendments
and Reauthorization Act, 42 U.S.C. ss. 9601, the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901, the state hazardous waste laws, as such laws
may from time to time be in effect, and related regulations, and all similar
laws and regulations.
"Hazardous Substances" has the meaning assigned to that term in CERCLA.
"Xxxxxx Family " shall mean (i) Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx
X. Xxxxxx, (ii) any of their direct family members (including, without
limitation, lineal ancestors and descendants, siblings, and lineal descendants
of siblings), (iii) any trusts and profit sharing plats and stock option plans
established for the sole benefit of the foregoing, and (iv) the heirs and
personal representatives of the foregoing.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all Guaranteed Indebtedness of such Person (including
contingent reimbursements obligations under undrawn financial letters of credit
but not performance letters of credit) (iii) all Capitalized Lease Obligations;
(iv) all Indebtedness of others secured by any Lien upon property owned by such
Person, whether or not assumed; and (v) all obligations or other liabilities
under currency contracts, interest rate contracts, interest rate
10
protection agreements, or similar agreements or combinations thereof.
Notwithstanding the foregoing, in determining the Indebtedness of any Person,
there shall be included all obligations of such Person of the character referred
to in clauses (i) through (v) above deemed to be extinguished under GAAP but for
which such Person remains legally liable except to the extent that such
obligations (x) have been defeased in accordance with the terms of the
applicable instruments governing such obligations and (y) the accounts or other
assets dedicated to such defeasance are not included as assets on the balance
sheet of such Person.
"Intercompany Loan Documents" shall mean, collectively, the promissory
notes and all related loan, subordination, and other agreements, to the extent
that they exist, relating in any manner to the Intercompany Loans.
"Intercompany Loans" shall mean, collectively, (i) the loans more
particularly described on Schedule 5.22 and (ii) those loans or other extensions
of credit made by any Consolidated Company to another Consolidated Company
satisfying the terms and conditions set forth in Section 7.01 or as may
otherwise be approved in writing by the Administrative Agent and the Required
Lenders.
"Interest Period" shall mean (i) with respect to Competitive Bid Loans,
such periods agreed upon between Borrower and Lenders, and (ii) with respect to
Eurodollar Advances, the period of 1, 2, 3 or 6 months selected by the Borrower,
in case of clause (ii) pursuant to the terms of the credit facility and subject
to customary adjustments in duration; provided, that (a) the first day of an
Interest Period must be a Business Day, (b) any Interest Period that would
otherwise end on 4 day that is not a Business Day for Eurodollar Loans shall be
extended to the next succeeding Business Day for Eurodollar Loans, unless such
Business Day falls in the next calendar month, in which case the Interest Period
shall end on the next preceding Business Day for Eurodollar Loans, and (c)
Borrower may not elect an Interest Period that would extend beyond the Revolving
Credit Termination Date.
"Investment" shall mean, when used with respect to any Person, any direct
or indirect advance, loan or other extension of credit (other than the creation
of receivables in the ordinary course of business) or capital contribution by
such Person (by means of transfers of property to others or payments for
property or services for the account or use of others, or otherwise) to any
Person, or any direct or indirect purchase or other acquisition by such Person
of, or of a beneficial interest in, capital stock, partnership interests, bonds,
notes, debentures or other securities issued by any other Person.
"Lender" or "Lenders" shall mean the banks and lending institutions listed
on the signature pages hereof, and each assignee thereof, if any, pursuant to
Section 10.06.
"Lending Office" shall mean for each Lender the office such Lender may
designate in writing from time to time to Borrower and the Administrative Agent
with respect to each Type of Revolving Loan.
11
"Leverage Ratio" shall mean, as of any date of determination, the ratio of
Total Funded Debt as of such date to Total Capitalization as of such date.
"LIBOR" shall mean, for any Interest Period, the offered rates for deposits
in U.S. dollars for a period comparable to the Interest Period appearing on the
Telerate Page 3750, as of I 1:00 a.m. London time on the day that is two
business days prior to the Interest Period. If at least two such rates appear on
the Telerate Page 3750, the rate for that Interest Period will be the arithmetic
mean of such rates, rounded, if necessary, to the next higher 1/16 of 1.0%. If
the foregoing rate is unavailable from the Telerate Page 3750 for any reason,
then such rate shall be determined by the Administrative Agent from the Reuters
Screen LIBOR Page, or if such rate is also unavailable on such service, then on
any other interest rate reporting service of recognized standing designated in
writing by the Administrative Agent to Borrower and the Lenders; it any such
case rounded, if necessary, to the next higher 1/16 of 1.0%, if the rate is not
such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lion or charge of any kind or description and shall include, without limitation,
any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any capital lease in the nature thereof including any lease
or similar arrangement with a public authority executed in connection with the
issuance of industrial development revenue bonds or pollution control revenue
bonds, and the filing of or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction.
"Line of Credit Agreement" shall mean that certain Line of Credit
Agreement, dated as of the date hereof, by and among Borrower, SunTrust Bank,
Central Florida, as Administrative Agent, First Union National Bank, as
Documentation Agent, NationsBank N.A., as Syndication Agent, SouthTrust Bank,
National Association, as Co-Agent, and the banks and lending institutions from
time to time parties thereto, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"Materially Adverse Effect" shall mean the occurrence of an event, which
would (i) cause the recognition of a liability, as required by Statement of
Financial Accounting Standard No. 5, in the current quarter financial statements
in the amount of $15,000,000 or more, or (ii) cause an auditor to have a
substantial doubt about the ability of Borrower to continue as a going concern
after consideration of management's plans as described in Statement of Auditing
Standards, No. 50.
"Material Subsidiary" shall mean each Subsidiary of Borrower, now existing
or hereinafter established or acquired, that at any time prior to the Final
Maturity Date, has or acquires total assets in excess of $1,000,000 or that
accounted for or produced more than 5% of the Consolidated EBITR of Borrower on
a consolidated basis during any of the three most recently completed fiscal
years of Borrower.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
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"Notice of Borrowing" shall have the meaning provided in Section 3.01.
"Notice of Continuation/Conversion" shall have the meaning provided in
Section 3.01.
"Obligations" shall mean all amounts owing to the Agents and all Lenders
pursuant to the terms of this Agreement or any other Credit Document, including
without limitation, all Revolving Loans (including all principal and interest
payments due thereunder), fees, expenses, indemnification and reimbursement
obligations, payments, indebtedness, liabilities, and obligations of the Credit
Parties, direct or indirect, absolute or contingent, liquidated or unliquidated,
now existing or hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof
"Payment Office" shall mean, for any Lender, the "Payment Office" listed on
its signature page to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted by Section
7.02.
"Person" shall mean and shall include an individual, a partnership, a joint
venture, a corporation, a trust., an unincorporated association, a government or
any department or agency thereof and any other entity whatsoever.
"Plan" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of the Borrower or
an ERISA Affiliate, which provides benefits or compensation to or on behalf of
employees or former employees, whether formal or informal, whether or not
written, including but not limited to the following types of plans:
(i) Executive Arrangements - any bonus, incentive compensation, stock
option, deferred compensation, commission, severance, "golden parachute",
"rabbi trust", or Other executive compensation plan, program, contract,
arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as defined in Section
3(5) of ERISA), including, but not limited to, any defined benefit pension
plan, profit sharing plan, money purchase pension plan, savings or thrift
plan, stock bonus plan, employee stock ownership plan, Multiemployer Plan,
or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits;
(iii) Other Employee Fringe Benefits - any stock purchase, vacation,
scholarship, day care, prepaid legal services, severance pay or other
fringe benefit plan, program, arrangement, contract or practice.
13
"Pro Rata Share" shall mean, with respect to each of the Revolving Loan
Commitments of each Lender and each Loan to be made by and each payment
(including, without limitation, any payment of principal, interest or fees) to
be made to each Lender, the percentage designated as such Lender's Pro Rata
Share of such Revolving Loan Commitments, such Revolving Loans or such payments,
as applicable, set forth under the name of such Lender on the respective
signature page for such Lender or in any assignment hereafter executed by an
assignee of a Lender pursuant to Section 10.06, in each case as such Pro Rata
Share may change from time to time as a result of assignments or amendments made
pursuant to this Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean, at any time, Lenders holding at least
sixty-six and two-thirds percent (66-2/3%) of the then aggregate amount of the
Revolving Loan Commitments and the aggregate outstanding Revolving Loans.
"Requested Commitment Amount" shall have the meaning assigned to it in
Section 3.03.
"Requirement of Law" for any Person shall mean the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Reuters Screen" shall mean, when used in connection with any designated
page and LIBOR, the display page so designated on the Reuter Monitor Money Rates
Service (or such other page as may replace that page on that service for the
purpose of displaying rates comparable to LIBOR).
"Revolving, Loans" or "Loans" shall mean, collectively, the revolving
credit loans made to Borrower by the Lenders pursuant to Section 2.01.
"Revolving Loan Commitment" or "Commitment" shall mean, at any time for any
Lender, the amount of such commitment set forth opposite such Lender's name on
the signature pages hereof or in any assignment hereafter executed by any
assignee of a Lender pursuant to Section 10.06, as the same may be increased or
decreased from time to time as a result of any reduction thereof pursuant to
Section 2.03, any assignment thereof pursuant to Section 10.06, or any amendment
thereof pursuant to Section 10.02.
"Revolving Loan Termination Date" shall mean the earlier of (i) January 25,
2004 and (ii) the date on which the Revolving Loan Commitments are terminated in
accordance with Article VIII.
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"Revolving Note" or "Note" shall mean any of the Syndicate Notes or
Competitive Bid Notes either as originally executed or as the same may be from
time to time supplemented, modified, amended, renewed or extended.
"Subordinated Debt" shall mean all Indebtedness of Borrower and its
Subsidiaries subordinated to all obligations of Borrower and its Subsidiaries or
any other Credit Party arising under this Agreement, the Revolving Notes and the
Guaranty Agreement on terms and conditions satisfactory in all respects to the
Administrative Agent and the Required Lenders, including without limitation,
with respect to interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies, and subordination provisions, as
evidenced by the written approval of the Administrative Agent and Required
Lenders.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, joint ventures, and
associations) regardless of its jurisdiction of organization or formation, at
least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries.
"Syndicate Loans" shall mean, collectively, the Revolving Loans made to
Borrower hereunder other than Competitive Bid Loans.
"Syndicate Note" shall mean a promissory note evidencing Syndicate Loans in
the form attached hereto as Exhibit A.
"Syndication Agent" shall mean NationsBank, N.A., a national banking
association, as syndication agent for the Lenders hereunder and under the other
Credit Documents, and each successor syndication agent.
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended and in
affect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings or other charges of whatever nature,
including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, Social security and franchise taxes now
or hereafter imposed or levied by the United States of America, or any state,
local or foreign government or by any department, agency or other political
subdivision or taxing authority thereof or therein and all interest, penalties,
additions to tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any designated page and
"LIBOR," the display page so designated on the Dow Xxxxx Telerate Service (or
such other page as may replace that page on that service for the purpose of
displaying rates comparable to "LIBOR").
15
"Total Capitalization" shall mean, as of any date of determination, the sum
of (i) Total Funded Debt plus (ii) Consolidated Net Worth as of such date.
"Total Commitment" shall mean the sum of the Lenders' Revolving Loan
Commitments as such Total Commitment may be reduced by voluntary reduction,
prepayment or nonrenewal of a Lender's Revolving Loan Commitment as provided
herein.
"Total Funded Debt" shall mean all Indebtedness of the Consolidated
Companies that by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, one year or
more from, or is directly or indirectly renewable or extendable at the option of
the debtor to a date one year or more (including an option of the debtor under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more) from, the date of the creation
thereof, provided that Total Funded Debt shall include, as at any date of
determination, any portion of such Indebtedness outstanding on such date which
matures on demand or within one year from such date (whether by sinking fund,
other required prepayment, or final payment at maturity) and shall also include
all Indebtedness of the Consolidated Companies for borrowed money under a line
of credit, guidance line, revolving credit, bankers acceptance facility or
similar arrangement for borrowed money, including, without limitation, all
unpaid drawings under letters of credit and unreimbursed amounts pursuant to
letter of credit reimbursement agreements, regardless of the maturity date
thereof.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Eurodollar Advances or Competitive Bid Advances.
"United States of America" shall mean the fifty (50) States and the
District of Columbia
"Wholly Owned Subsidiary" shall mean any Subsidiary, all the stock or
ownership interest of every class of which, except directors' qualifying shares,
shall, at the time as of which any determination is being made, be owned by
Borrower either directly or indirectly.
"Year 2000 Issues" shall mean the actual and anticipated costs, claims,
losses, and liabilities associated with the inability of certain computer and
software applications to effectively handle data that includes dates prior to,
on, spanning or after January 1, 2000, as such inability in respect of any
Consolidated Company affects the business, operations, and financial conditioner
any Consolidated Company.
Section 1.02 Accounting Terms and Determination. Unless otherwise defined
or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP.
16
Section 1.03 Other Definitional Terms. The words "hereof', "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified.
Section 1.04 Exhibits and Schedules. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
Article II.
REVOLVING LOAN COMMITMENTS
Section 2.01 Revolving Loan Commitments, Use of Proceeds.
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees to make to Borrower from time to time on and
after the Closing Date, but prior to the Revolving Loan Termination Date,
Revolving Loans in an aggregate amount outstanding at any time not to
exceed such Lender's Revolving Loan Commitment. Borrower shall be entitled
to repay and reborrow Revolving Loans in accordance with the provisions
hereof.
(b) Each Revolving Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Syndicate Loans (comprised of Base Rate Advances or
Eurodollar Advances) or Competitive Bid Loans. The aggregate principal
amount of each Borrowing of Revolving Loans comprised of Eurodollar
Advances shall not be less than $5,000,000 or a greater integral multiple
of $1,000,000. The aggregate principal amount of each Borrowing of
Competitive Bid Loans shall not be less than $5,000,000. The aggregate
principal amount of each Borrowing of Revolving Loans comprised of Base
Rate Advances shall not be less than $ 1,000,000 or a greater integral
multiple of $ 1,000,000. At no time shall the number of Borrowings
outstanding under this Article II exceed ten; provided that, for the
purpose of determining the number of Borrowings outstanding and the minimum
amount for Borrowings resulting from conversions or continuations, all
Borrowings of Base Rate Advances under this Facility shall be considered as
one Borrowing. The parties hereto agree that (i) the aggregate principal
balance of the Revolving Loans (including the Competitive Bid Loans) of the
Lenders as a group shall not exceed the aggregate principal amount of all
Revolving Loan Commitments, (ii) no Lender shall be obligated to make
Syndicate Loans in excess of the Revolving Loan Commitment of such Lender,
(iii) no Lender shall be obligated hereunder to extend Competitive Bid
Loans or to make quotes for such Competitive Bid Loans, and (iv) a Lender
may elect, in its discretion, to extend Competitive Bid Loans which, either
alone or together with the Syndicate Loans of such Lender, exceed the
Revolving Loan Commitment of such Lender.
17
(c) The proceeds of Revolving Loans shall be used solely to refinance
existing indebtedness, to fund future acquisitions, to fund share
repurchase agreements, to fund the working capital needs of the Borrower
and its Subsidiaries, and for general corporate purposes.
Section 2.02 Syndicate Note; Repayment of Principal.
(a) Borrower's obligations to pay the principal of, and interest on,
the Syndicate Loans and the Competitive Bid Loans to each Lender shall be
evidenced by the records of the Administrative Agent and such Lender and by
the Syndicate Note and the Competitive Bid Note, respectively, payable to
such Lender (or the assignor of such Lender) completed in conformity with
this Agreement.
(b) All outstanding principal amounts under the Revolving Loans shall
be due and payable in full at the earlier of (i) the Revolving Loan
Termination Date or (ii) acceleration of the indebtedness as provided in
Article VIII.
Section 2.03 Voluntary Reduction of Revolving Loan Commitments. Upon at
least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Administrative Agent, Borrower shall have the right, without
premium or penalty, to terminate the Revolving Loan Commitments, in part or in
whole, provided that (i) any such termination shall Apply to proportionately and
permanently reduce the Revolving Loan Commitments of each of the Lenders, (ii)
any partial termination pursuant to this Section 2.03 shall be in an amount of
at least $5,000,000 and integral multiples of $1,000,000, and (iii) no such
reduction shall be permitted if prohibited or without payment of all costs
required to be paid hereunder with respect to a prepayment. If the aggregate
outstanding amount of the Revolving Loans exceeds the amount Of the Revolving
Loan Commitments as so reduced, Borrower shall immediately repay the Revolving
Loans by an amount equal to such excess, together with all accrued but unpaid
interest on such excess amount and any amounts due under Section 3.13 hereof.
Article III.
GENERAL LOAN TERMS
Section 3.01 Funding Notices.
(a) (i) Whenever Borrower desires to make a Borrowing of Syndicate
Loans under its Revolving Loan Commitments (other than one resulting from a
conversion or continuation pursuant to Section 3.01(b)(i)), it shall give
the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of such Borrowing (a "Notice of Borrowing")
at its Payment Office such Notice of Borrowing to be given prior to (x) I
1:00 A.M. (local time for the Administrative Agent) one (1) Business Day
prior to the requested date of such Borrowing in the case of Base Rate
Advances, (y) 11:00 A.M.
18
(local time for the Administrative Agent) three (3) Business Days prior to
the requested date of such Borrowing in the case of Eurodollar Advances and
(z) prior to 1:00 P.M. (local time for the Administrative Agent) on the
requested date of such Borrowing in the case of Competitive Bid Advances.
Notices received after 1 1:00 A.M. for Base Rate Advances and Eurodollar
Advances and 1:00 P.M. for Competitive Bid Advances shall be deemed
received on the next Business Day. Each Notice of Borrowing shall be
irrevocable and shall specify the aggregate principal amount of the
Borrowing, the date of Borrowing (which shall be a Business Day), and
whether the Borrowing is to consist of Base Rate Advances or Eurodollar
Advances and (in the case of Eurodollar Advances) the Interest Period to be
applicable thereto.
(ii) Whenever Borrower desires to make a Borrowing of Competitive Bid
Loans under its Revolving Loan Commitments (other than one resulting from a
conversion or continuation pursuant to Section 3.01(b)(ii)), it shall give
the Administrative Agent notice that the Lenders are requested to provide
Competitive Bid Rates for Interest Periods identified by Borrower, such
Interest Periods not to exceed 180 days. Notices must comply with notice
requirements of each respective Lender, which shall be communicated by
Lenders to Borrower from time to time. Each Lender in its discretion may,
but shall not be obligated to, submit a quote to the Borrower in connection
with such request. The Borrower shall then be entitled, in its sole
discretion, to elect to incur all or any part of the Competitive Bid Loan
offered by one or more of the Lenders that have elected to provide quotes
for any of the Interest Periods and at the rate(s) quoted by such
Lender(s). The Competitive Bid Loans incurred by the Borrower in connection
with such a request for quotes shall not exceed (i) with respect to all
Lenders then providing quotes, the then unutilized Revolving Loan
Commitments of all Lenders as a group, and (ii) with respect to each Lender
providing a quote, the amount bid by such Lender in connection with such
Lender's quote. The Borrower shall notice the Administrative Agent and such
Lender or Lenders of its election in accordance with the procedures
established with such Lender or Lenders, having no obligation to report the
terms thereof; Provided, however, that if any Borrowing of Eurodollar
Advances must be made as Base Rate Advances as a result of a determination
made by the Administrative Agent pursuant to Section 3.09, such Notice of
Borrowing may be revoked by Borrower no later than one (1) Business Day
prior to the date of funding.
(b) (i) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing of Syndicate Loans under its Revolving Loan
Commitments, Which Borrowing consists of Base Rate Advances into one or
more Borrowings consisting of Eurodollar Advances or to continue
outstanding a Borrowing consisting of Eurodollar Advances for a new
Interest Period, it shall give the Administrative Agent at least three
Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be converted into or
continued as Eurodollar Advances. Such notice (a "Notice of
Continuation/Conversion") shall be given prior to I 1:00 A.M. (local time
for the Administrative Agent) on the date specified at the Payment Office
of the Administrative Agent. Each such Notice of Continuation/Conversion
shall be irrevocable and shall specify the aggregate principal amount of
the Advances to be converted or continued, the date of such conversion or
continuation and the Interest Period applicable
19
thereto. If, upon the expiration of any Interest Period in respect of any
Borrowing, Borrower shall have failed to deliver the Notice of
Continuation/Conversion, Borrower shall be deemed to have elected to
convert or continue such Borrowing to a Borrowing consisting of Base Rate
Advances. So long as any Executive Officer of Borrower has knowledge that
any Default or Event of Default shall have occurred and be continuing, no
Borrowing may be converted into or continued as (upon expiration of the
current Interest Period) Eurodollar Advances unless the Administrative
Agent and each of the Lenders shall have otherwise consented in writing. No
conversion of any Borrowing of Eurodollar Advances shall be permitted
except on the last day of the interest Period in respect thereof
(ii) Whenever Borrower desires to continue all or a portion of an
outstanding Borrowing of Competitive Bid Loans under its Revolving Loan
Commitments, for a new Interest Period, it may request that the Lenders
provide quotes for Competitive Bid Rates in the same manner prescribed in
Section 3.01 (a)(ii) for funding. Whenever Borrower desires to convert all
or a portion of an outstanding Borrowing of Competitive Bid Loans under its
Revolving Loan Commitments into a Borrowing of Syndicate Loans, it shall
comply with the provisions prescribed in Section 3.01(b)(i) for conversion
of Syndicate Loans. If, upon the expiration of any Interest Period in
respect of any Competitive Bid Borrowing, Borrower shall have failed to
deliver the Notice of Continuation/Conversion, or Lenders fail to provide
such quotes, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing of a Syndicate Loan consisting of
Base Rate Advances. So long as any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into (upon
expiration of the current Interest Period) Eurodollar Advances. No
conversion of any Borrowing into Eurodollar Advances shall be permitted
except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to confirm in
writing any telephonic notice, the Administrative Agent and the Lenders may
act without liability upon the basis of telephonic notice believed by the
Administrative Agent or the Lender in good faith to be from Borrower prior
to receipt of written confirmation. In each such case, Borrower hereby
waives the right to dispute the Administrative Agent's and the Lender's
record of the terms of such telephonic notice.
(d) The Administrative Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the
Administrative Agent pursuant to this Section 3.01 with respect to the
Revolving Loan Commitments.
Section 3.02 Disbursement of Funds.
(a) No later than 11:00 A.M. (local time for the Administrative Agent)
on the date of each Borrowing of Syndicate Loans pursuant to the Revolving
Loan Commitments (other than one resulting from a conversion or
continuation pursuant to Section 3.01(b)(i)), each Lender will make
available its Pro Rata Share of the amount of such
20
Borrowing in immediately available funds at the Payment Office of the
Administrative Agent. The Administrative Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Administrative Agent in a timely manner by crediting such
amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, to effect a wire transfer of
such amounts to Borrower's account specified by the Borrower, by the close
of business oil such Business Day. In the event that the Lenders do not
make such amounts available to the Administrative Agent by the time
prescribed above, but such amount is received later that day, such amount
may be credited to Borrower in the manner described in the preceding
sentence on the next Business Day (with interest on such amount to begin
accruing hereunder on such next Business Day).
(b) No later than 2:00 P.M. (local time for the applicable Lender) on
the date of each Borrowing of Competitive Bid Loans (other than one
resulting from a conversion or continuation pursuant to Section
3.01(b)(ii)), the Lender making any Competitive Bid Loan will make
available the amount of such Borrowing in immediately available funds by
wire transfer to an account specified by the Borrower on the date of each
Borrowing pursuant to the Revolving Loan Commitments (other than one
resulting from a conversion or continuation pursuant to Section
3.01(b)(ii)).
(c) Unless the Administrative Agent shall have been notified by the
Lender making any Syndicate Loan prior to the date of a Borrowing that such
Lender does not intend to make available to the Administrative Agent such
Lender's portion of the Borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date and the Administrative
Agent may make available to Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative
Agent by such Lender on the date of Borrowing, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest at the Federal Funds Rate. If such Lender
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly Notify
Borrower, and Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified for
the Borrowing. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Revolving Loan Commitments hereunder
or to prejudice any rights which Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(d) All Borrowings of Syndicate Loans shall be loaned by the Lenders
on the basis of their Pro Rata Share of the Revolving Loan Commitments. All
Borrowings of Competitive Bid Loans under the Revolving Loan Commitments
shall be loaned by the Lenders whose quotes were accepted by the Borrower.
No Lender shall be responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make the
Revolving Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to fund its Revolving Loan Commitments
hereunder.
21
Section 3.03 Increase of Revolving Loan Commitments.
(a) So long as no Event of Default has occurred and is continuing,
Borrower may, at any time by written notice to the Administrative Agent,
who shall promptly notify the Lenders, request that the Revolving Loan
Commitments be increased up to an amount not to exceed $275,000,000 in the
aggregate (the "Requested Commitment Amount") on a pro rata basis based on
the Pro Rata Shares of the Lenders. No Lender (or any successor thereto)
shall have any obligation to increase its Revolving Loan Commitment or its
other obligations under this Agreement and the other Credit Documents, and
any decision by a Lender to increase its Revolving Loan Commitment shall be
made in its sole discretion independently from any other Lender. Within
fifteen (15) Business Days from each Lender's receipt of such request from
the Borrower, each Lender shall notify the Administrative Agent in writing
of whether or not it will agree to increase its Revolving Loan Commitment
and by what amount it will agree to increase such Revolving Loan
Commitment, up to its Pro Rata Share of the Requested Commitment Amount.
Decisions to increase a Revolving Loan Commitment must be affirmatively
communicated in writing and shall not be presumed based upon a failure to
respond to Borrower's request.
(b) In the event that the aggregate amount to which the Lenders are
willing to increase their Revolving Loan Commitments is less than the
Requested Commitment Amount based on the written notices delivered by the
Lenders to the Administrative Agent, the Administrative Agent shall first
offer to the Lenders who have agreed to increase their Revolving Loan
Commitments the opportunity to further increase their Revolving Loan
Commitments up to an amount equal to the Requested Commitment Amount. Such
Lenders shall promptly respond in writing to the Administrative Agent of
whether or not it will agree to further increase its Revolving Loan
Commitment and by what amount it will agree to further increase its
Revolving Loan Commitment. Within five (5) Business Days after receipt of
all responses from such Lenders, the Administrative Agent shall inform the
Borrower and all Lenders in writing of the amount by Which each Lender will
increase its Revolving Loan Commitment.
(c) In the event that the aggregate amount to which the Lenders are
willing to increase their Revolving Loan Commitments is less than the
Requested Commitment Amount based on the notice from the Administrative
Agent to the Borrower and all Lenders, the Borrower shall have the right,
within sixty days (60) after receipt of such notice from the Administrative
Agent, to obtain commitments from new banks or financial institutions in an
aggregate amount such that the existing Revolving Loan Commitments, plus
the aggregate principal amount by which the Lenders are willing to increase
their Revolving Loan Commitments, plus the aggregate principal amount of
the new commitments by the new banks or financial institutions does not
exceed the Requested Commitment Amount; provided, however, that (1) the new
banks or financial institutions must be acceptable to the Administrative
Agent, which acceptance will not be unreasonably withhold or delayed, and
(2) the new banks or financial institutions must become parties to this
Agreement pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and the Required Lenders, pursuant
to which (x)
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they shall be granted all of the rights that existing Lenders have under
this Agreement and the other Credit Documents and (y) they shall assume the
same liabilities and obligations that the existing Lenders have under this
Agreement.
Section 3.04 Interest.
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Syndicate Loans from the respective dates such principal
amounts were advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum (on the basis of a 360-day
year) equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time to
time; and (ii) For Eurodollar Advances--The relevant Adjusted LIBO
Rate plus the Applicable Margin.
(b) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Competitive Bid Loans made to Borrower from the respective
dates such principal amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at times and at rates per
annum (on the basis of a 360-day year) equal to the applicable rates agreed
upon between Borrower and the Lender making such Competitive Bid Loans.
(c) Overdue principal and, to the extent not prohibited by applicable
law, overdue interest, in respect of the Revolving Loans, whether Syndicate
Loans or Competitive Bid Loans, and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are
overdue:
(i) in the case of overdue principal and interest with respect to
all Revolving Loans outstanding as Eurodollar Advances and Competitive
Bid Advances, at the rate otherwise applicable for the then-cur-rent
Interest Period plus an additional two percent (2.0%) per annum;
thereafter at the rate in effect for Base Rate Advances plus an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with respect
to all other Revolving Loans outstanding as Base Rate Advances, and
all other Obligations hereunder (other than Revolving Loans), at a
rate equal to the applicable Base Rate plus an additional two percent
(2.0%) per annum;
provided that no Revolving Loan shall bear interest after maturity, whether by
non-payment at scheduled due date, acceleration, notice of prepayment or
otherwise at a rate per annum less then two percent (2.0%) per annum in excess
of the rate of interest applicable thereto at maturity.
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(d) Interest on each Revolving Loan shall accrue from and including
the date of such Revolving Loan to, but excluding, the date of any
repayment thereof; provided that, if a Revolving Loan is repaid on the same
day made, one day's interest shall be paid on such Revolving Loan. Interest
on all outstanding Base Rate Advances shall be payable quarterly in arrears
on the last calendar day of each fiscal quarter of Borrower in each year.
Interest on all outstanding Eurodollar Advances and Competitive Bid
Advances shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of Eurodollar Advances having an
Interest Period in excess of three months, on each day which occurs every
three months, as the case may be, after the initial date of such Interest
Period. Interest on all Revolving Loans shall be payable on any conversion
of any Advances comprising such Revolving Loans into Advances of another
Type, prepayment (on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and, after maturity, on
demand.
(e) The Administrative Agent, upon determining the Adjusted XXXX Rate
for any interest Period, shall promptly notify by telephone (confirmed in
writing) or in writing Borrower and the other Lenders. Any such
determination shall, absent manifest error, be final, conclusive and
binding for all purposes. A Lender making a Competitive Bid Loan has no
obligation to notice any other Lender of the interest rates charged to
Borrower.
Section 3.05 Interest Periods.
(a) In connection with the making or continuation of, or conversion
into, each Borrowing of Syndicate Loans comprised of Eurodollar Advances,
Borrower shall select an interest period (each an "Interest Period") to be
applicable to such Eurodollar Advances, which Interest Period shall be
either a 1, 2, 3 or 6 month period; provided that:
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances shall commence on the date of such Borrowing (including the
date of any conversion from a Borrowing consisting of Advances of
another Type) and each Interest Period occurring thereafter in respect
of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provide that if any Interest Period in
respect of Eurodollar Advances would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period shall, subject
to part (iv) below, expire on the last Business Day of such calendar
month;
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(iv) No Interest Period shall extend beyond any date upon which
any principal payment is due with respect to the Revolving Loans.
(b) When Borrower requests a quote for a Competitive Bid Loan, the
Borrower shall specify the Interest Period to be applicable to such
Revolving Loan, which Interest Period shall be as agreed upon by the
Borrower and such Lender; provided, however, that (i) no Interest Period
shall exceed 180 days, (ii) no Interest Period shall extend beyond the
Revolving Loan Termination Date and (iii) if any Interest Period would
otherwise expire on a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day. Interest shall be payable
in respect of each Competitive Bid Loan on the last day of each Interest
Period applicable to such Competitive Bid Loan, and at maturity (whether by
acceleration or otherwise).
Section 3.06 Fees.
(a) Borrower shall pay to the Administrative Agent, for the account of
and distribution of the respective Pro Rata Share to each Lender, a
facility fee (the "Facility Fee") for the period commencing on the Closing
Date to and including the Revolving Loan Termination Date, equal to (i) the
Applicable Facility Fee Percentage per annum multiplied by (ii) on the
daily average of the aggregate Revolving Loan Commitments of the Lenders,
such fee being payable quarterly in arrears on the last calendar day of
each fiscal quarter of Borrower and on the Revolving Loan Termination Date.
(b) Borrower shall pay to the Administrative Agent such other fees as
are specified, and in accordance with, the Fee Letter.
Section 3.07 Voluntary Prepayments of Borrowings.
(a) Borrower may, at its option, prepay Borrowings consisting of Base
Rate Advances at any time in whole, or from time to time in part, in
amounts aggregating $2,500,000 or any greater integral multiple of
$500,000, by paying the principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of prepayment. Those
Borrowings consisting of Eurodollar Advances may be prepaid, at Borrower's
option, in whole, or from time to time in part, in amounts aggregating
$5,000,000 or any greater integral multiple of $1,000,000, by paying the
principal amount to be prepaid, together with interest accrued and unpaid
thereon to the date of prepayment and all compensation payments pursuant to
Section 3.13 if such prepayment is made on a date other than the last day
of an Interest Period applicable thereto. Each such optional prepayment
shall be applied in accordance with Section 3.07(c) below.
(b) Borrower shall give written notice (or telephonic notice confirmed
in writing) to the Administrative Agent of any intended prepayment of (i)
Base Rate Advances not less than one Business Day prior to any such
prepayments and (ii) Eurodollar Advances not less than three Business Days
prior to any such prepayment. Borrower shall give
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written notice (or telephonic notice confirmed in writing) to the
respective Lender who made any Competitive Bid Loan of any intended
prepayment of such Competitive Bid Loan not less than one Business Day
prior to any prepayment of such Competitive Bid Loan. Such notice, once
given, shall be irrevocable. Upon receipt of such notice of prepayment
pursuant to the first sentence of this paragraph (b), the Administrative
Agent shall promptly notify each Lender of the contents of such notice and
of such Lender's share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to Section
3.07(b) may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid, provided that (i) if any prepayment of
Eurodollar Advances made pursuant to a single Borrowing of the Revolving
Loans shall reduce the outstanding Advances made pursuant to such Borrowing
to an amount less than $1,000,000, such Borrowing shall immediately be
converted into Base Rate Advances; and (ii) each prepayment made pursuant
to a single Borrowing shall be applied pro rata among the Revolving Loans
comprising such Borrowing, if such prepayment is not a prepayment of a
Competitive Bid Loan. All voluntary prepayments shall be applied to the
payment of any unpaid interest before application to principal.
Section 3.08 Payments, etc.
(a) (i) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents, other than the
payments specified in clause (ii) below, shall be made without defense,
set-off or counterclaim to the Administrative Agent, not later than 2:00
P.M. (local time for the Administrative Agent) on the date when due and
shall be made in Dollars in immediately available funds at the respective
Payment Office.
(ii) Except as otherwise specifically provided herein, all payments
under this Agreement with respect to the Lenders making any Competitive Bid
Loans shall be made without defense, set-off or counterclaim to such Lender
not later than 2:00 P.M. (local time for such Lender) on the date when due
and in immediately available funds at its Payment Office or at any other
location of the Lender as such Lender may specify in writing to Borrower
not later than 12:00 Noon (local time for the Lender) on the Business Day
such payment is due.
(b) (i) All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in respect of this Agreement, the
Revolving Notes or other Credit Documents, or any payments of principal,
interest, fees or other amounts payable hereunder or thereunder (but
excluding any Taxes imposed on the overall net income of the Lenders
pursuant to the laws of the jurisdiction in which the principal executive
office or appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the Revolving
Notes and other Credit Documents, after withholding or deduction for or on
account of any such Taxes (including additional sums payable under this
Section 3.08),
26
will not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority
in accordance with applicable law. Borrower will furnish to the
Administrative Agent and each Lender, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by Borrower. Borrower will indemnify
and hold harmless the Administrative Agent and each Lender and reimburse
the Administrative Agent and each Lender upon written request for the
amount of any Taxes so levied or imposed and paid by the Administrative
Agent or Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes were correctly or illegally asserted. A certificate as to the amount
of such payment by such Lender or the Administrative Agent, absent manifest
error, shall be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction
other than the United States of America agrees to furnish to Borrower and
the Administrative Agent, prior to the time it becomes a Lender hereunder,
two copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 or any successor forms thereto (wherein
such Lender claims entitlement to complete exemption from or reduced rate
of U.S. Federal withholding tax on interest paid by Borrower hereunder) and
to provide to Borrower and the Administrative Agent a new Form 4224 or Form
1001 or any successor forms thereto if any previously delivered form is
found to be incomplete or incorrect in any material respect or upon the
obsolescence Of any previously delivered form; provided, however, that no
Lender shall be required to furnish a form under this paragraph (ii) if it
is not entitled to claim an exemption from or a reduced rate of withholding
under applicable law. A Lender that is not entitled to claim an exemption
from or a reduced rate of withholding under applicable law, promptly upon
written request of Borrower, shall so inform Borrower in writing.
(c) Subject to Section 3.05(a)(ii), whenever any payment to be made
hereunder or under any Revolving Note 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 and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during such
extension.
(d) On other than Competitive Bid Loans, which shall be negotiated
from time to time, all computations of interest and fees shall be made on
the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest or fees are payable (to the extent computed on the basis of
days elapsed), except that interest on Base Rate Advances shall be computed
on the basis of a year of 360 days for the actual number of days. Interest
on Base Rate Advances shall be calculated based on the Base Rate from and
including the date of such Revolving Loan to but excluding the date of the
repayment or conversion thereof. Interest on Eurodollar Advances shall be
calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Each determination by the
Administrative Agent or the Lender making any Competitive Bid
27
Loan of an interest rate or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all
purposes.
(e) Payment by Borrower to the Administrative Agent in accordance with
the terms of this Agreement shall, as to Borrower, constitute payment to
the Lenders under this Agreement.
Section 3.09 Interest Rate Not Ascertainable, etc. In the event that the
Administrative Agent, in the case of the Adjusted LIBO Rate, shall have
determined (which determination shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all parties) that on any date
for determining the Adjusted LIBO Rate for any Interest Period, by reason of any
changes arising after the date of this Agreement affecting the London interbank
market or the Administrative Agent's position in such market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted LIBO Rate then, and in any such
event, the Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the Lenders of such determination and a
summary of the basis for such determination. Until the Administrative Agent
notifies Borrower that the circumstances giving rise to the suspension described
herein no longer exist, the obligations of the Lenders to make or permit
portions of the Revolving Loans to remain outstanding past the last day of the
then current Interest Periods as Eurodollar Advances shall be suspended, and
such affected Advances shall bear the same interest as Base Rate Advances.
Section 3.10 Illegally.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall
be final, conclusive and binding upon 41 parties) at any time that the
making or continuance of any Eurodollar Advance has become unlawful by
compliance by such Lender in good faith with any applicable law,
governmental rule, regulation, guideline or order (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, the Lender shall give prompt notice (by
telephone confirmed in writing) to Borrower and to the Administrative Agent
of such determination and a summary of the basis for such determination
(which notice the Administrative Agent shall promptly transmit to the other
Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, Borrower's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and
such Lender shall make an Advance as part of the requested Borrowing of
Eurodollar Advances as a Base Rate Advance, provided, Borrower does not
negotiate a Competitive Bid Loan, which Base Rate Advance shall, for all
other purposes, be considered part of such Borrowing, and (ii) if the
affected Eurodollar Advance or Advances are then outstanding, Borrower
shall immediately, or if permitted by applicable law, no later than the
date permitted thereby, upon at least one Business Day's written notice to
the Administrative Agent and the affected Lender,
28
convert each such Advance into an Advance or Advances of a different Type
with an Interest Period ending on the date on which the Interest Period
applicable to the affected Eurodollar Advances expires, provided that if
more than one Lender is affected at any time, then all affected Lenders
must be treated the same pursuant to this Section 3. 1 0(b).
Section 3.11 Increased Costs.
(a) If, by reason of (x) after the date hereof, the introduction of or
any change (including, without limitation, any change by way of imposition
or increase of reserve requirements) in or in the interpretation of any law
or regulation, or (y) the compliance with any guideline or request from any
central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(i) any Lender (or its applicable Lending Office) shall be
subject to any tax)q duty or other charge with respect to its
Eurodollar Advances or its obligation to make Eurodollar Advances, or
the basis of taxation of payments to any Lender of the principal of or
interest on its Eurodollar Advances or its obligation to make
Eurodollar Advances shall have changed (except for changes in the tax
on the overall net income of such Lender or its applicable Lending
Office imposed by the jurisdiction in which such Lender's principal
executive office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed by
the Board of Governors of the Federal Reserve System), special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender's applicable Lending
Office shall be imposed or deemed applicable or any other condition
affecting its Eurodollar Advances or its obligation to make Eurodollar
Advances shall be imposed on any Lender or its applicable Lending
Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances), or there shall be a reduction in
the amount received or receivable by such Lender or its applicable Lending
Office; then Borrower shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 3.08(b)), upon written notice
from and demand by such Lender on Borrower (with a copy of such notice and
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender within five Business Days after the date of such notice
and demand, additional amounts sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased cost, submitted
to Borrower and the Administrative Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
29
(b) If any Lender shall advise the Administrative Agent that at any
time, because of the circumstances described in clauses (x) or (y) in
Section 3.1 l(a) or any other circumstances beyond such Lender's reasonable
control arising after the date of this Agreement affecting such Lender or
the London interbank market or the United States of America secondary
certificate of deposit market or such Lender's position in such markets,
the Adjusted LIBO Rate, as determined by the Administrative Agent, will not
adequately and fairly reflect the cost to such Lender of funding its
Eurodollar Advances, then, and in any such event:
(i) the Administrative Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the other Lenders
of such advice;
(ii) Borrower's right to request and such Lender's obligation to
make or permit portions of the Revolving Loans to remain outstanding
past the last day of the then current Interest Periods as Eurodollar
Advances shall be immediately suspended; and
(iii) such Lender shall make a Revolving Loan as part of the
requested Borrowing of Eurodollar Advances, as the case may be, as a
Base Rate Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
Section 3.12 Lending Offices.
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
Eurodollar Advances affected by the matters or circumstances described in
Sections 3.08(b), 3.09, 3.10 or 3.11 to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 3.12 shall affect or postpone any
of the obligations of Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America issues a public announcement with
respect to the closing of its lending offices in the United States of
America or any State thereof (including the District of Columbia) such that
any withholdings or deductions and additional payments with respect to
Taxes may be required to be made by Borrower thereafter pursuant to Section
3.08(b), such Lender shall use reasonable efforts to furnish Borrower
notice thereof as soon as practicable thereafter; provided, however, that
no delay or failure to furnish such notice shall in any event release or
discharge Borrower from its obligations to such Lender pursuant to Section
3.08(b) or otherwise result in any liability of such Lender.
30
Section 3.13 Funding Losses. Borrower shall compensate each Lender, upon
its written request to Borrower (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Advances, in either case to
the extent not recovered by such Lender in connection with the re-employment of
such funds and including loss of anticipated profits), which the Lender may
sustain: (i) if for any reason (other than a default by such Lender) a borrowing
of, or conversion to or continuation of Eurodollar Advances to Borrower does not
occur on the date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section
3.10(b)) of any Eurodollar Advances to Borrower occurs on a date which is not
the last day of an Interest Period applicable thereto, or (iii), if, for any
reason, Borrower defaults in its obligation to repay its Eurodollar Advances
when required by the terms of this Agreement.
Section 3.14 Assumptions Concerning Funding of Eurodollar Advances.
Calculation of all amounts payable to a Lender under this Article III shall be
made as though that Lender had actually funded its relevant Eurodollar Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Eurodollar Advances in an amount equal to the amount of
the Eurodollar Advances and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that Lender in the United
States of America; provided, however, that each Lender may fund each of its
Eurodollar Advances in any manner it sees fit and the foregoing assumption shall
be used only for calculation of amounts payable under this Article III.
Section 3.15 Apportionment of Payments. Aggregate principal and interest
payments in respect of Revolving Loans and payments in respect of the Facility
Fee shall be apportioned among all outstanding Revolving Loan Commitments and
Revolving Loans to which such payments relate, proportionately to the Lenders'
respective pro rata portions of such Revolving Loan Commitments and outstanding
Revolving Loans. The Administrative Agent shall promptly distribute to each
Lender at its Payment Office set forth beside its name on the appropriate
signature page hereof or such other address as any Lender may request its share
of all such payments received by the Administrative Agent.
Section 3.16 Sharing of Payments, Etc. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders and
Administrative Agent of such receipt, and (ii) purchase from the other Lenders
such participation's in the affected obligations as shall be necessary to cause
such purchasing Lender to share the excess
31
payment or reduction, net of costs incurred in connection therewith, ratably
with each of them, provided that if all or any portion of such excess payment or
reduction is thereafter recovered from such purchasing Lender or additional
costs are incurred, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery or such additional costs, but without
interest unless the Lender obligated to return such funds is required to pay
interest on such funds. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 3.16 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of Borrower in the amount of such participation.
Section 3.17 Capital Adequacy. Without limiting any other provision of this
Agreement, in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance by an amount reasonably deemed by such
Lender to be material, then within ten (10) Business Days after written notice
and demand by such Lender (with copies thereof to the Administrative Agent),
Borrower shall from time to time pay to such Lender additional amounts
sufficient to compensate such Lender for such reduction (but, in the case of
outstanding Base Rate Advances, without duplication of any amounts already
recovered by such Lender by reason of an adjustment in the applicable Base
Rate). Each certificate as to the amount payable under this Section 3.17 (which
certificate shall set forth the basis for requesting such amounts in reasonable
detail), submitted to Borrower by any Lender in good faith, shall, absent
manifest error, be final, conclusive and binding for all purposes.
Section 3.18 Benefits to Guarantors. In consideration for the execution and
delivery by the Guarantors of the Guaranty Agreement, Borrower agrees to make
the benefit Of extensions of credit hereunder available to the Guarantors.
Section 3.19 Limitation on Certain Payment Obligations.
(a) Each Lender or Administrative Agent shall make written demand on
Borrower for indemnification or compensation pursuant to Section 3.08 no
later than 90 days after the earlier of (i) the date on which such Lender
or the Administrative Agent makes payment of such Taxes, and (ii) the date
on which the relevant taxing authority or other governmental authority
makes written demand upon such Lender or the Administrative Agent for
payment of such Taxes.
32
(b) Each Lender or the Administrative Agent shall make written demand
on Borrower for indemnification or compensation pursuant to Sections 3.13
and 3.14 no later than 90 days after the event giving rise to the claim for
indemnification or compensation occurs.
(c) Each Lender or the Administrative Agent shall make written demand
on Borrower for indemnification or compensation pursuant to Sections 3.11
and 3.17 no later than 90 days after such Lender or the Administrative
Agent receives actual notice or obtains actual knowledge of the
promulgation of a law, rule, order or interpretation or occurrence of
another event giving rise to a claim pursuant to such sections.
(d) In the event that the Lenders or the Administrative Agent fail to
give Borrower notice within the time limitations prescribed in (a) or (b)
above, Borrower shall not have any obligation to pay such claim for
compensation or indemnification. In the event that the Under or the
Administrative Agent fail to give Borrower notice within the time
limitation prescribed in (c) above, Borrower shall not have any obligation
to pay any amount with respect to claims accruing prior to the ninetieth
day preceding such written demand.
Article IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower hereunder is
subject to the satisfaction of the following conditions:
Section 4.01 Conditions Precedent to Initial Revolving Loans. At the time
of the making of the initial Revolving Loans hereunder on the Closing Date, all
obligations of Borrower hereunder incurred prior to the initial Revolving Loans
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Administrative Agent and any fees
and expenses payable to the Administrative Agent and the Lenders as previously
agreed with Borrower), shall have been paid in full, and the Administrative
Agent shall have received the following, in form and substance reasonably
satisfactory in all respects to the Administrative Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the Revolving Loan
Commitments;
(c) the duly executed Guaranty Agreement;
(d) certificate of Borrower in substantially the form of Exhibit C
attached hereto and appropriately completed;
33
(e) the duly executed Commitment Letter;
(f) the duly executed Fee Letter;
(g) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing as applicable
the execution, delivery and performance of the Credit Documents;
(h) certificates of the Secretary or an Assistant Secretary of each of
the Credit Parties certifying (i) the name, title and true signature of
each officer of such entities executing the Credit Documents, (ii) the
bylaws or comparable governing documents of such entities; and (iii) the
certificate or articles of incorporation of each Credit Party;
(i) certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of incorporation or
organization of such Credit Party;
(j) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of
Law or by any material Contractual Obligation of the Credit Parties, in
connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
executed and delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired;
(k) certified copies of the Intercompany Loan Documents, to the extent
that they exist and have not previously been certified to the Lenders; (l)
duly executed solvency certificates of Borrower and each of the Guarantors,
in form and substance satisfactory to the Agents and Lenders; (m)
acknowledgment from CSC Network Corporation System, Inc. as to its
appointment as agent for service of process for the various Credit Parties;
(n) certified copies of indentures, credit agreements, leases, capital
leases, instruments, and other documents evidencing or securing
Indebtedness of any Consolidated Company described on Schedule 7.01(b), in
any single case in an amount not less than $500,000 and to the extent not
previously certified to the Lenders;
(o) certificates, reports and other information as the Administrative
Agent may reasonably request from any Consolidated Company in order to
satisfy the Lenders as to the absence of any material liabilities or
obligations arising from matters relating to employees of the Consolidated
Companies, including employee relations, collective bargaining agreements,
Plans, and other compensation and employee benefit plans;
34
(p) certificates, reports, environmental audits and investigations,
and other information as the Administrative Agent may reasonably request
from any Consolidated Company in order to satisfy the Lenders as to the
absence of any material liabilities or obligations arising from
environmental and employee health and safety exposures to which the
Consolidated Companies may be subject, and the plans of the Consolidated
Companies with respect thereto;
(q) certificates, reports and other information as the Administrative
Agent may reasonably request from any Consolidated Company in order to
satisfy the Lenders as to the absence of any material liabilities or
obligations arising from litigation (including without limitation, products
liability and patent infringement claims) pending or threatened against the
Consolidated Companies;
(r) a certificate of insurance summarizing, in form and detail
reasonably acceptable to the Administrative Agent, of the types and amounts
of insurance (property and liability) maintained by the Consolidated
Companies;
(s) the favorable opinion of counsel to the Credit Parties addressed
to the Administrative Agent and each of the Lenders; and
(t) financial statements of Borrower and its Subsidiaries, audited on
a consolidated basis for the fiscal year ended on the last Friday in
January, 1998 and unaudited on a consolidated basis for the fiscal quarter
ended on the last Friday in October, 1998.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Administrative Agent, as of the
time the initial Revolving Loans are made hereunder:
(u) the Revolving Loans to be made on the Closing Date and the use of
proceeds thereof shall not contravene, violate or conflict with, or involve
the Administrative Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or other
governmental authority;
(v) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of
the Credit Documents shall be reasonably satisfactory in form and substance
to the Required Lenders; and
(w) the status of all pending and threatened litigation (including
products liability and patent claims) which might result in a Materially
Adverse Effect, including a description of any damages sought and the
claims constituting the basis therefor, shall have been reported in writing
to the Administrative Agent, the Administrative Agent shall have reported
such matters to the Lenders, and the Lenders shall be satisfied with such
status.
Section 4.02 Conditions to All Revolving Loans. At the time of the making
of all Revolving Loans (before as well as after giving effect to such Revolving
Loans and to the
35
proposed use of the proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the
date of such Revolving Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 5.03, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect.
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or
more Credit Party's ownership or operation of any portion of its business
or assets, or to compel one or more Credit Party to dispose of or hold
separate all or any portion of its businesses or assets, where such portion
or portions of such business(es) or assets, as the case may be, constitute
a material portion of the total businesses or assets of the Consolidated
Companies;
(e) the Revolving Loans to be made and the use of proceeds thereof
shall not contravene, violate or conflict with, or involve the
Administrative Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or other
governmental authority applicable to Borrower; and
(f) the Administrative Agent shall have received such other documents
or legal opinions as the Administrative Agent or any Lender may reasonably
request, all in form and substance reasonably satisfactory to the
Administrative Agent.
Each request for a Borrowing and the acceptance by Borrower of the proceeds
thereof shall constitute a representation and warranty by Borrower, as of the
date of the Revolving loans comprising such Borrowing, that the applicable
conditions specified in Sections 4.01 and 4.02 have been satisfied.
Article V.
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
Section 5.01 Organization and Qualification. Borrower is a corporation duly
organized and existing in good standing under the laws of the State of Florida.
Each Subsidiary of Borrower is a corporation duly organized and existing under
the laws of the jurisdiction of its
36
incorporation. Borrower and each of its Subsidiaries are duly qualified to do
business as a foreign corporation and are in good standing in each jurisdiction
in which the character of their properties or the nature of their business makes
such qualification necessary, except for such jurisdictions in which a failure
to qualify to do business would not have a Materially Adverse Effect. Borrower
and each of its Subsidiaries have the corporate power to own their respective
properties and to each on their respective businesses as now being conducted.
The jurisdiction of incorporation or organization, and the ownership of all
issued and outstanding capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 5.01. Schedule 5.Q4 also
designates the Material Subsidiaries as of the Closing Date.
Section 5.02 Corporate Authority. The execution and delivery by Borrower
and the Guarantors of and the performance by Borrower and Guarantors of their
obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the Guarantors are a party or by which Borrower or the Guarantors or
any of their properties is bound, or (ii) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
Section 5.03 Financial Statements. Borrower has furnished Lenders with the
following financial statements: (i) consolidated balance sheets and consolidated
statements of income, stockholders' equity and cash flow of Borrower for the
fiscal year ended on the last Friday in January, 1998, audited by Price
Waterhouse Coopers LLP and (ii) unaudited consolidated balance sheets and
consolidated statements of income, stockholders' equity and cash flow of
Borrower for the fiscal quarter ending on the last Friday in October, 1998. Such
financial statements (including any related schedules and notes) are true and
correct in all material respects (subject, as to interim statements, to changes
resulting from audits and year end adjustments), have been prepared in
accordance with GAAP consistently applied throughout the period or periods in
question and show, in the case of audited statements, all liabilities, direct or
contingent, of Borrower and its Subsidiaries, required to be shown in accordance
with GAAP consistently applied throughout the period or periods in question and
fairly present the consolidated financial position and the consolidated results
of operations of Borrower and its Subsidiaries for the periods indicated
therein. There has been no material adverse change in the business, condition or
operations, financial or otherwise, of Borrower and its Subsidiaries since the
last Friday in October, 1998.
Section 5.04 Tax Returns. Each of Borrower and its Subsidiaries has filed
all federal, state and other income tax returns which, to the best knowledge of
the executive officers of Borrower and its Subsidiaries, are required to be
filed, and each has paid all taxes as shown on said returns and on all
assessments received by it to the extent that such taxes have become due or
except such as are being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP.
37
Section 5.05 Actions Pending. There is no action, suit, investigation or
proceeding pending or, to the knowledge of Borrower, threatened against or
affecting Borrower or any of its Subsidiaries or any of their properties or
rights, by or before any court, arbitrator or administrative or governmental
body, which might result in any Materially Adverse Effect.
Section 5.06 Representations; No Defaults. At the time of each Extension of
Credit there shall exist no Default or Event of Default, and each Extension of
Credit shall be deemed a renewal by Borrower of the representations and
warranties contained in this Agreement and an affirmative statement by Borrower
that such representations and warranties are true and correct on and as of such
time with the same effect as though such representations and warranties had been
made on and as of such time.
Section 5.07 Title to Properties. Each of Borrower and its Subsidiaries has
(i) good and marketable fee simple title to its respective real properties
(other than real properties which it leases from others), including such real
properties reflected in the consolidated balance sheet of Borrower and its
Subsidiaries as of the last Friday of October, 1998, here in above described
(other than real properties disposed of in the ordinary course of business),
subject to no Lien of any kind except Liens permitted by Section 7.02 and (ii)
good title to all of its other respective properties and assets (other than
properties and assets which it leases from others), including the other
properties and assets reflected in the consolidated balance sheet of Borrower
and its Subsidiaries at the last Friday of October, 1998, here in above
described (other than properties and assets disposed of in the ordinary course
of business), subject to no Lien of any kind except Liens permitted by Section
1.02. Each of Borrower and its Subsidiaries enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its respective properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or impair the operation of
such properties and assets, and all such leases are valid and subsisting and in
full force and effect.
Section 5.08 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Revolving Notes, and all other Credit
Documents, when executed and delivered, will be similarly legal, valid, binding
and enforceable, except as the enforceability of the Revolving Notes and other
Credit Documents may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditor's rights and remedies in general
and by general principles of equity, whether considered in a proceeding at law
or in equity.
Section 5.09 Consent. No consent, permission, authorization, order or
license of any governmental authority or Person is necessary in connection with
the execution, delivery, performance or enforcement of the Credit Documents, or
in order to constitute the indebtedness to be incurred hereunder and under the
Revolving Notes and the other Credit Documents as "Senior Debt" or any similar
term defined within the documents evidencing any Subordinated Debt.
38
Section 5.10 Use of Proceeds, Federal Reserve Regulations. The proceeds of
the Revolving Notes will be used solely for the purposes specified in Section
2.01 (c) and none of such proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any "margin security" or "margin stock" or for
the purpose of reducing or retiring any indebtedness that originally was
incurred to purchase or carry a "margin security" or "margin stock" or for any
other purpose that might constitute this transaction a "purpose credit" within
the meaning of the regulations of the Board of Governors of the Federal Reserve
System.
Section 5.11 ERISA.
(a) Identification of Certain Plans. Schedule 5.11 hereto sets forth
all Plans of Borrower and its Subsidiaries;
(b) Compliance. Each Plan is being maintained, by its terms and in
operation, in accordance with all applicable laws, except such
noncompliance's (when taken as a whole) that will not have a Materially
Adverse Effect;
(c) Liabilities. Neither the Borrower nor any Subsidiary is currently
or will become subject to any liability (including withdrawal liability),
tax or penalty whatsoever to any person whomsoever with respect to any Plan
including, but not limited to, any tax, penalty or liability arising under
Title I or Title IV of ERISA or Chapter 43 of the Tax Code, except such
liabilities (when taken as a whole) as will not have a Materially Adverse
Effect; and
(d) Funding. The Borrower and each ERISA Affiliate has made full and
timely payment of all amounts (i) required to be contributed under the
terms of each Plan and applicable law and (ii) required to be paid as
expenses of each Plan, except where such non-payment would not have a
Materially Adverse Effect. No Plan has an "amount of unfunded benefit
liabilities' (as defined in Section 4001(a)(18) of ERISA) except as
disclosed on Schedule 5.11. No Plan is subject to a waiver or extension of
the minimum funding requirements under ERISA or the Tax Code, and no
request for such waiver or extension is pending.
Section 5.12 Subsidiaries. All the outstanding shares of stock of each such
Subsidiary have been validly issued and are fully paid and nonassessable and all
such outstanding shares, except as noted on such Schedule 5.01, are owned by
Borrower or a Wholly Owned Subsidiary of Borrower free of any Lien or claim.
Each Subsidiary (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of its incorporation with the power
and authority (corpora* and other) to carry on its business as it is now
conducted and (ii) is qualified to transact business as a foreign corporation
and is in good standing in each jurisdiction in which such qualification is
required under applicable law.
39
Section 5.13 Outstanding Indebtedness. As of the date of closing and after
giving effect to the transactions contemplated by this Agreement, neither
Borrower nor any of its Subsidiaries has outstanding any Indebtedness except as
permitted by Section 7.01 and there exists no default under the provisions of
any instrument evidencing such Indebtedness or of any agreement relating
thereto.
Section 5.14 Conflicting Agreements. Neither Borrower nor any of its
Subsidiaries is a party to any contract or agreement or other burdensome
restrictions or subject to any charter or other corporate restriction which
materially and adversely affects its business, property or assets, or financial
condition. Assuming the consummation of the transactions contemplated by this
Agreement, neither the execution or delivery of this Agreement or the Credit
Document, nor fulfillment of or compliance with the terms and provisions hereof
and thereof, will conflict with, or result in a breach of the terms, conditions
or provisions of, or constitute a default under, or result in any violation of,
or result in the creation of any Lien upon any of the properties or assets of
Borrower or any of its Subsidiaries pursuant to, the charter or By-Laws of
Borrower or any of its Subsidiaries, any award of any arbitrator or any
agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which Borrower or any of
its Subsidiaries is subject, and neither Borrower nor any of its Subsidiaries is
a party to, or otherwise subject to any provision contained in, any instrument
evidencing Indebtedness of Borrower or any of its Subsidiaries, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Indebtedness of the type to be evidenced by the Revolving Notes or contains
dividend or redemption limitations on Common Stock of Borrower, except for this
Agreement, Borrower's Certificate of Incorporation and those matters listed on
Schedule 5.14 attached hereto.
Section 5.15 Pollution and Other Regulations.
(a) Each of the Borrower and its Subsidiaries has complied in all
material respects with all applicable Environmental Laws, including without
limitation, compliance with permits, licenses, standards, schedules and
timetables, and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that it is or may be
liable under and does not have knowledge of any liability or potential
liability (including any liability relating to matters set forth on
Schedule 5.15(a)) except as set forth on Schedule 5.15(a), under any
applicable Environmental Law, including without limitation, the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 ("CERCLA"), the Federal Water Pollution Control Act, as amended
("FWPCA"), the Federal Clean Air Act, as amended ("FCAA"), and the Toxic
Substance Control Act ("TSCA"), which violation, liability or potential
liability could reasonably be expected to have a Materially Adverse Effect.
40
(b) Neither the Borrower nor any of its Subsidiaries has received a
written request for information under CERCLA, any other Environmental Laws
or any comparable state law, or any public health or safety or welfare law
or written notice that any such entity has been identified as a potential
responsible party under CERCLA, and other Environmental Laws, or any
comparable state law, or any public health or safety or welfare law, nor
has any such entity received any Written notification that any Hazardous
Substance that it or any of its respective predecessors in interest has
generated, stored, treated, handled, transported, or disposed of, has been
released or is threatened to be released at any site at which any Person
intends to conduct or is conducting a remedial investigation or other
action pursuant to any applicable Environmental Law, or any other
Environmental Laws.
(c) Each of the Borrower and its Subsidiaries has obtained all
permits, licenses or other authorizations required for the conduct of their
respective operations under all applicable Environmental Laws and each such
authorization is in full force and effect.
(d) Each of Borrower and its Subsidiaries complies in all material
respects with all laws and regulations relating to equal employment
opportunity and employee safety in all jurisdictions in which it is
presently doing business, and Borrower will use its best efforts to comply,
and to cause each of its Subsidiaries to comply, with all such laws and
regulations which may be legally imposed in the future in jurisdictions in
which Borrower or any of its Subsidiaries may then be doing business.
Section 5.16 Possession of Franchises, Licenses, Etc. Each of Borrower and
its Subsidiaries possesses all franchises, certificates, licenses, permits and
other authorizations from governmental political subdivisions or regulatory
authorities, free from burdensome restrictions, that are necessary in any
material respect for the ownership, maintenance and operation of its properties
and assets, and neither Borrower nor any of its Subsidiaries is in violation of
any thereof in any material respect.
Section 5.17 Patents, Etc. Each of Borrower and its Subsidiaries owns or
has the right to use all patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, which
are necessary for the operation of its business as presently conducted. Nothing
has come to the attention of Borrower, any of its Subsidiaries or any of their
respective directors and officers to the effect that (i) any product, process,
method, substances part or other material presently contemplated to be sold by
or employed by Borrower or any of its Subsidiaries in connection with its
business may infringe any patent, trademark, service xxxx, trade name,
copyright, license or other right owned by any other Person, (ii) there is
pending or threatened any claim or litigation against or affecting Borrower or
any of its Subsidiaries contesting its right to sell or use any such product,
process, method, substance, part or other material or (iii) there is, or there
is pending or proposed, any patent, invention, device, application or principle
or any statute, law, rule, regulation, standard or code which would prevent,
inhibit or render obsolete the production or sale of any products of, or
substantially reduce the projected revenues of, or otherwise materially
adversely affect the business, condition or operations of, Borrower or any of
its Subsidiaries,
41
Section 5.18 Governmental Consent. Neither the nature of Borrower or any of
its Subsidiaries nor any of their respective businesses or properties, nor any
relationship between Borrower and any other Person, nor any circumstance in
connection with the execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby is such as to require on
behalf of Borrower or any of its Subsidiaries any consent, approval or other
action by or any notice to or filing with any court or administrative or
governmental body in connection with the execution and delivery of this
Agreement and the Credit Documents.
Section 5.19 Disclosure. Neither this Agreement nor the Credit Documents
nor any other document, certificate or written statement furnished to Lenders by
or on behalf of Borrower in connection herewith contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no fact peculiar
to Borrower which materially adversely affects or in the future may (so far as
Borrower can now foresee) materially adversely affect the business, property or
assets, financial condition or prospects of Borrower which has not been set
forth in this Agreement or in the Credit Documents, certificates and written
statements furnished to Lenders by or on behalf of Borrower prior to the date
hereof in connection with the transactions contemplated hereby.
Section 5.20 Insurance Coverage. Each property of Borrower or any of its
Subsidiaries is insured within terms acceptable to Lenders for the benefit of
Borrower or a Subsidiary of Borrower in amounts deemed adequate by Borrower's
management and no less than those amounts customary in the industry in which
Borrower and its Subsidiaries operate against risks usually insured against by
Persons operating businesses similar to those of Borrower or its Subsidiaries in
the localities where such properties are located.
Section 5.21 Labor Matters. The Borrower and the Borrower's Subsidiaries
have experienced no strikes, labor disputes, slow downs or work stoppages due to
labor disagreements which have had, or would reasonably be expected to have, a
Materially Adverse Effect, and, to the best knowledge of Borrower's executive
officers, there are no such strikes, disputes, slow downs or work stoppages
threatened against any Borrower or any of Borrower's Subsidiaries. The hours
worked and payment made to employees of the Borrower and Borrower's Subsidiaries
have not been in violation in any material respect of the Fair Labor Standards,
Act or any other applicable law dealing with such matters. All payments due from
the Borrower and Borrower's Subsidiaries, or for which any claim may be made
against the Consolidated Companies, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as liabilities on
the books of the Borrower and Borrower's Subsidiaries where the failure to pay
or accrue such liabilities would reasonably be expected to have a Materially
Adverse Effect.
Section 5.22 Intercompany Loans, Dividends. The Intercompany Loans and the
Intercompany Loan Documents, to the extent that they exist, have been duly
authorized and approved by all necessary corporate and shareholder action on the
part of the parties thereto, and
42
constitute the legal, valid and binding obligations of the parties thereto,
enforceable against each of them in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, and by
general principles of equity. There are no restrictions on the power of any
Consolidated Company to repay any Intercompany Loan or to pay dividends on the
capital stock. Intercompany Loans as of the Closing Date are described in
Schedule 5.22.
Section 5.23 Burdensome Restrictions. None of the Consolidated Companies is
a party to or bound by any Contractual Obligation or Requirement of Law which
has had or would reasonably be expected to have a Materially Adverse Effect.
Section 5.24 Investment Company Act, Etc. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). Neither the Borrower nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, or any foreign, federal or local statute or
regulation limiting its ability to incur indebtedness for money borrowed,
guarantee such indebtedness, or pledge its assets to secure such indebtedness,
as contemplated hereby or by any other Credit Document.
Section 5.25 Notice of Non-Compliance with Laws. Neither the Borrower not
any of its Subsidiaries has received notice of any violation of Law, statute,
order, rule, regulation, or judgment entered by any court that may reasonably be
expected to have a Materially Adverse Effect.
Section 5.26 Year 2000 Issues. Borrower and the other Consolidated
Companies are performing a comprehensive review of their computers and software
applications to identify the systems that would be affected by Year 2000 Issues
as such issues pertain to the computer programs and systems of the Consolidated
Companies, (ii) based on their review, and all other information currently
available to them, do not reasonably anticipate that Year 2000 Issues will have
a Materially Adverse Effect, and (iii) are in compliance with all laws, rules
and regulations Of the Securities and Exchange Commission.
Article VI.
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any indebtedness remains outstanding under the Revolving
Notes that it will:
Section 6.01 Corporate Existence, Etc. Preserve and maintain, and cause
each of its Material Subsidiaries to preserve and maintain, its corporate
existence, its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration
43
thereof), trademarks, trade names, and service marks, necessary or desirable in
the normal conduct of its business, and its qualification to do business as a
foreign corporation in all jurisdictions where it conducts business or other
activities making such qualification necessary, where the failure to do so would
reasonably be expected to have a Materially Adverse Effect.
Section 6.02 Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 6.07(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of $1 0,000,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected to
have a Materially Adverse Effect.
Section 6.03 Payment of Taxes and Claims, Etc. Pay, and cause each of its
Subsidiaries to pay, (i) all taxes, assessments and governmental charges imposed
upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto.
Section 6.04 Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
Section 6.05 Visitation, Inspection, Etc. Permit, and cause each of its
Subsidiaries to pen-nit, any representative of the Administrative Agent or any
Lender to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
and as often as the Administrative Agent or such Lender may reasonably request
after reasonable prior notice to Borrower; provided, however, that at any time
following the occurrence and during the continuance of a Default or an Event of
Default, no prior notice to Borrower shall be required.
44
Section 6.06 Insurance, Maintenance of Properties.
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by reputable companies in the same
or similar businesses, such insurance to be of such types and in such
amounts, including such self-insurance and deductible provisions, as is
customary for such companies under similar circumstances; provided,
however, that in any event Borrower shall use its best efforts to maintain,
or cause to be maintained, insurance in amounts and with coverage's not
materially less favorable to any Consolidated Company as in effect on the
date of this Agreement, except where the costs of maintaining such
insurance would, in the judgment of both Borrower and the Administrative
Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent
Borrower from discontinuing the operation or maintenance of any such
properties if such discontinuance is, in the judgment of Borrower,
desirable in the conduct of its business or the business of any
Consolidated Company.
Section 6.07 Reporting Covenants. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in any event
within 95 days after the end of each fiscal year of Borrower, balance
sheets of the Consolidated Companies as at the end of such year, presented
on a consolidated basis, and the related statements of income,
shareholders' equity, and cash flows of the Consolidated Companies for such
fiscal year, presented on a consolidated basis, setting forth in each case
in comparative form the figures for the previous fiscal year, all in
reasonable detail and accompanied by a report thereon of independent public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at the
end of such fiscal year on a consolidated basis, and the results of
operations and statements of cash flows of the Consolidated Companies for
such fiscal year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and in any
event Within 60 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal
45
quarter), balance sheets of the Consolidated Companies as at the end of
such quarter presented on a consolidated basis and the related statements
of income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of Borrower's fiscal
year ended at the end of such quarter, presented on a consolidated basis
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's previous
fiscal year, all in reasonable detail and certified by the chief financial
officer or principal accounting officer of Borrower that such financial
statements fairly present in all material respects the financial condition
of the Consolidated Companies as at the end of such fiscal quarter on a
consolidated basis, and the results of operations and statements of cash
flows of the Consolidated Companies for such fiscal quarter and such
portion of Borrower's fiscal year, in accordance with GAAP consistently
applied (subject to normal year-end audit adjustments and the absence of
certain footnotes);
(c) No Default/Compliance Certificate. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of the president, chief financial officer or principal
accounting officer of Borrower (the "Compliance Certificate") (i) to the
effect that, based upon a review of the activities of the Consolidated
Companies and such financial statements during the period covered thereby,
there exists no Event of Default and no Default Under this Agreement, or if
there exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii) demonstrating in
reasonable detail compliance as at the end of such fiscal year or such
fiscal quarter with Section 6.08 and Sections 7.01 through 7.04;
(d) Notice of Default. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of Default
or a Default, a certificate of the chief financial officer or principal
accounting officer of Borrower specifying the nature thereof and the
proposed response thereto;
46
(e) Litigation. Promptly after (i) the occurrence thereof, notice of
the institution of or any adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property
thereof which might have a Materially Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration;
(f) Environmental Notices. Promptly after receipt thereof, notice of
any actual or alleged violation, or notice of any action, claim or request
for information, either judicial or administrative, from any governmental
authority relating to any actual or alleged claim, notice of potential
responsibility under or violation of any Environmental Law, or any actual
or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated
Company which could result in penalties, fines, claims or other liabilities
to any Consolidated Company in amounts in excess of $5,000,000 individually
or in the aggregate;
(g) ERISA.
(i) Promptly after the occurrence thereof with respect to any
Plan of any Consolidated Company or any ERISA Affiliate thereof, or
any trust established thereunder, notice of (x) a "reportable event"
described in Section 4043 of ERISA and the regulations issued from
time to time thereunder (other than a "reportable event" not subject
to the provisions for 30-day notice to the PBGC under such
regulations), or (y) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or 419 of
the Tax Code, where any such taxes, penalties or liabilities exceed or
could exceed $1,000,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC, or
to a Plan participant, beneficiary or alternative payee, any notice
required under Section 101(d), 302(f)(4), 303, 307, 4041 (b)(1)(A) or
4041 (c)(1)(A) of ERISA or under Section 401(4)(29) or 412 of the Tax
Code with respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof,
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental authority to terminate a
Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate "der Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent, promptly upon
the filing thereof with the Internal Revenue Service ("IRS") or the
Department of Labor
47
("DOL"), a copy of IRS Form 5500 or annual report for each Plan of any
Consolidated Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA;
(v) Upon the request of the Administrative Agent, (A) true and
complete copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed
with the IRS, PBGC or DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a current statement
of withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Company becoming aware
thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 7.02;
(i) Public Filings, Etc. Promtly upon the filing thereof or otherwise
becoming available, copies of all financial statements, annual, quarterly
and special reports, proxy statements and notices sent or made available
generally by Borrower to its public security holders, of all regular and
periodic reports and all registration statements and prospectuses (other
than registration statements filed on Form S-3 of the Securities and
Exchange Commission regarding the issuance of restricted stock in
acquisitions), if any, filed by any of them with any securities exchange,
and of all press releases and other statements made available generally to
the public containing material developments in the business or financial
condition of Borrower and the other Consolidated Companies;
(j) Accountants Reports. Promptly upon receipt thereof, copies of all
financial statements of, and all reports submitted by, independent public
accountants to Borrower in connection with each annual, interim, or special
audit of Borrower's consolidated financial statements;
(k) Burdensome Restrictions, Etc. Promptly upon the existence or
occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 5.23,
(ii) failure of any Consolidated Company to hold in full force and effect
those material trademarks, service marks, patents, trade names, copyrights,
licenses and similar rights necessary in the normal conduct of its
business, and (iii) any strike, labor dispute slow down or work stoppage as
described in Section 5.2 1;
(l) New Material Subsidiaries. Simultaneously with the delivery of
each Compliance Certificate, a written list of all Material Subsidiaries
formed, acquired, or created from a transfer of assets or through any other
event, during the period commencing on the Closing Date and ending on the
date on which the first Compliance Certificate is delivered, and thereafter
since the date of the most recently delivered Compliance Certificate; such
written list shall include the name of each new Material
48
Subsidiary, its state of incorporation, list of its officers and any other
information that the Administrative Agent shall reasonably request.
(m) Intercompany Asset Transfers. Promptly upon the occurrence
thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a
Guarantor (in any transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of business,
where the Asset Value of such assets is greater than $5,000,000 per
transfer;
(n) Year 2000 Issues. Promptly upon any Executive Officer of Borrower
has notice or knowledge thereof, notice that any computer programs and
systems of the Consolidated Companies are subject to any Year 2000 Issues
that could reasonable be expected to have a Materially Adverse Effect; and
(o) Other Information. With reasonable promptness, such other
information about the Consolidated Companies as the Administrative Agent or
any Lender may reasonably request from time to time.
Section 6.08 Financial Covenants.
(a) Fixed Charge Coverage Ratio. Maintain as of the last day of each
fiscal quarter, a Fixed Charge Coverage Ratio of greater than 1.50:1.0.
(b) Leverage Ratio. Maintain as of the last day of each fiscal
quarter, a Leverage Ratio of less than or equal to 0.60: 1.0.
(c) Minimum Net Worth. Maintain a Consolidated Net Worth of not less
than $425,000,000 plus (ii) 50% of Consolidated Net Income (but not Loss)
for each fiscal quarter ended after January 30, 1998 and on or prior to the
date of determination.
(d) Dividends. Not declare or pay any dividend on its capital stock,
or make any payment to purchase, redeem, retire or acquire any of its
Subordinated Debt or capital stock Or any option, warrant, or other right
to acquire such Subordinated Debt or capital stock, other than:
(i) dividends payable solely in shares of capital stock; and
(ii) cash dividends declared and paid, and all other such
payments made, after January 29, 1993, in an aggregate amount at any
time not to exceed (x) $1,000,000, plus (y) 50% of Consolidated Net
Income (or minus 100% of Consolidated Net Loss) earned during
Borrower's fiscal year ended January 29, 1993, and thereafter (such
period to be treated as one accounting period); provided, further,
however, no such dividend or other payment may be declared or paid
pursuant to clause (ii) above unless no Default or
49
Event of Default exists at the time of such declaration or payment, or
would exist as a result of such declaration or payment.
Section 6.09 Notices Under Certain Other Indebtedness. Immediately Upon its
receipt thereof, Borrower shall furnish the Administrative Agent a copy of any
notice received by it or any other Consolidated Company from the holder(s) of
Indebtedness referred to in Section 7.01 (or from any trustee, agent, attorney,
or other party acting on behalf of such holder(s)) in an amount which, in the
aggregate, exceeds $5,000,000, where such notice states or claims (i) the
existence or occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness, or
(ii) the existence or occurrence of any event or condition which requires or
pen-nits holder(s) of any Indebtedness to exercise rights under any Change in
Control Provision. Borrower agrees to take such actions as may be necessary to
require the holder(s) of any Indebtedness (or any trustee or agent acting on
their behalf incurred pursuant to documents executed or amended and restated
after the Closing Date, to furnish copies of all such notices directly to the
Administrative Agent simultaneously with the furnishing thereof to Borrower, and
that such requirement may not be altered or rescinded without the prior written
consent of the Administrative Agent.
Section 6.10 Additional Guarantors. Borrower shall cause each new Material
Subsidiary reported to the Administrative Agent and the Lenders pursuant to
Section 6.07(l) above to execute and deliver to the Administrative Agent,
simultaneously with the report given pursuant to Section 6.07(l) above, a
supplement to the Guaranty Agreement, together with related documents of the
kind described in Section 4.01, as appropriate, all in form and substance
satisfactory to the Administrative Agent and the Required Lenders.
Section 6.11 Financial Statements; Fiscal Year. Borrower shall make no
change in the dates of the fiscal year now employed for accounting and reporting
purposes without the prior written consent of the Required Lenders, which
consent shall not be unreasonably withheld.
Section 6.12 Ownership of Guarantors. Borrower shall maintain its
percentage of ownership existing as of the date hereof of all Guarantors, and
shall not decrease its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at the time such
Person becomes a Guarantor.
50
Article VII.
NEGATIVE COVENANTS
So long as any Revolving Loan Commitment remains in effect hereunder or any
Revolving Note shall remain unpaid, Borrower will not and will not permit any
Subsidiary to:
Section 7.01 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, other than:
(a) Indebtedness under this Agreement or the Line of Credit Agreement;
(b) Indebtedness outstanding on the date hereof or pursuant to lines
of credit in effect on the date hereof and described on Schedule 7.01(b).
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 7.02(b) provided such purchase money Indebtedness does
not exceed $20,000,000;
(d) unsecured current liabilities (other than liabilities for borrower
money or liabilities evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of business and either (i) not
more than 30 days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed liability
maintained in conformity with GAAP;
(e) any Intercompany Loans; provided, however, that the aggregate
principal amount of all Intercompany Loans made to any Consolidated
Companies that are not Guarantors shall not exceed $5,000,000 in the any
one time outstanding unless otherwise agreed in writing by the
Administrative Agent and the Required Lenders;
(f) other Subordinated Debt in form and substance acceptable to the
Administrative Agent and the Required Lenders, and evidenced by their
written consent thereto;
(g) other Indebtedness not to exceed $75,000,000 at any one time
outstanding.
Section 7.02 Liens. Create, incur, assume or suffer to exist any Lien on
any of its property now owned hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the date hereof disclosed on Schedule 7.02;
(b) any Lien on any property securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the acquisition cost of
such property and any
51
refinancing thereof, provided that such Lien does not extend to any other
property, and provided further that the aggregate principal amount of
Indebtedness secured by all such Liens at any time does not exceed
$20,000,000;
(c) Liens for taxes not yet due, and Liens for taxes or Liens imposed
by ERISA which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained;
(d) Statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained;
(e) Liens incurred or deposits made 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, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money); and
(f) Liens (other than those permitted by paragraphs (a) through (e) of
this Section 7.02) encumbering assets having an Asset Value not greater
than $20,000,000 in the aggregate any one time.
Section 7.03 Mergers, Acquisitions, Sales, Etc. Merge or consolidate with
any other Person, other than Borrower or another Subsidiary, or sell, lease, or
otherwise dispose of its accounts, property or other assets (including capital
stock of Subsidiaries), or purchase, lease or otherwise acquire all or any
substantial portion of the property or assets (including capital stock) of any
Person; provided, however, that the foregoing restrictions on asset sales shall
not be applicable to (i) sales of equipment or other personal property being
replaced by other equipment or other personal property purchased as a capital
expenditure item, (ii) sales of accounts receivable pursuant to a securitization
program, provided further that any program costs incurred by the Borrower in
pursuing such a program shall be considered interest under this Credit
Agreement, (iii) other asset sales (including the stock of Subsidiaries) where,
on the date of execution of a binding obligation to make such asset sale
(provided that if the asset sale is not consummated within six (6) months of
such execution, then on the date of consummation of such asset sale rather than
on the date of execution of such binding obligation), the Asset Value of asset
sales occurring after the Closing Date, taking into account the Asset Value of
the proposed asset sale, would not exceed ten percent (10%) of Borrower's
Consolidated Net Worth, since the Closing Date, and (iv) sales of inventory in
the ordinary course of business; provided, further, that the foregoing
restrictions on mergers shall not apply to mergers involving Borrower and
another entity, provided Borrower is the surviving entity, and mergers between a
Subsidiary of Borrower and Borrower or between Subsidiaries of Borrower provided
that, in either case, upon consummation of such mergers, Borrower is in
compliance with the other provisions hereof-, provided, further, that the
foregoing restrictions on asset
52
purchases shall not apply to asset purchases by Borrower to the extent that (i)
after giving effect to such purchases, Borrower is in compliance with Section
7.04 hereof and (ii) the Board of Directors or other governing body of such
Person whose assets or stock is being purchased has approved the terms of such
acquisition; provided, however, that no transaction pursuant to clauses (i),
(ii) or (iii) or the second or third provisos above shall be permitted if any
Default or Event of Default otherwise exists at the time of such transaction or
would otherwise exist as a result of such transaction.
Section 7.04 Investments, Loans, Etc. Make, permit or hold any Investments
in any Person, or otherwise acquire or hold any Subsidiaries, other than:
(a) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 6. 1 0 after the Closing Date;
provided, however, nothing in this Section 7.04 shall be deemed to
authorize an investment pursuant to this subsection (a) in any entity that
is not a Subsidiary and a Guarantor prior to such investment;
(b) Investments in Subsidiaries, other than those Subsidiaries that
are or become Guarantors under this Agreement, or persons that thereafter
become Subsidiaries, in an aggregate amount not to exceed $25,000,000
unless otherwise consented to in writing by the Required Lenders;
(c) Investments in other Persons that are not, and do not become,
Subsidiaries in an aggregate amount not to exceed $25,000,000 unless
otherwise consented to in writing by the Required Lenders;
(d) direct obligations of the United States of America or any agency
thereof, or obligations guaranteed by the United States of America or any
agency thereof, in each case supported by the full faith and credit of the
United States of America and maturing within one year from the date of
creation thereof;
(e) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(f) time deposits maturing within one year from the date of creation
thereof with, including certificates of deposit issued by any Lender and
any office located in the United States of America of any bank or trust
company which is organized under the laws of the United States of America
or any state thereof and has total assets aggregating at least
$500,000,000, including without limitation, any such deposits in
Eurodollars issued by a foreign branch of any such bank or trust company;
(g) Investments made by Plans; and
53
(h) permitted Intercompany Loans on terms and conditions acceptable to
the Administrative Agent.
Section 7.05 Sale and Leaseback Transactions. Sell or transfer any
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except to the extent that the aggregate
value of all such property sold and leased back does not exceed $5,000,000 at
any one time.
Section 7.06 Transactions with Affiliates.
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in
the ordinary course of business, with any Affiliate of any Consolidated
Company (but excluding any Affiliate which is also a Consolidated Company),
other than on terms and conditions substantially as favorable to such
Consolidated Company as would be obtained by such Consolidated Company at
the time in a comparable arm's-length transaction with a Person other than
an Affiliate.
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any other assets
(excluding conveyances or transfers in the ordinary course of business) if
at the time of such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
Section 7.07 Optional Prepayments. Directly or indirectly, prepay,
purchase, redeem, retire, defuse or otherwise acquire, or make any optional
payment on account of any principal of, interest on, or premium payable in
connection with the optional prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Notes, (ii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities permitted pursuant
to Section 7.01, (iii) Intercompany Loans made or outstanding pursuant to
Section 7.01, and (iv) Subordinated Debt, in form and substance acceptable to
the Administrative Agent and the Required Lenders, as evidenced by their written
consent, issued to refinance existing Subordinated Debt.
Section 7.08 Changes in Business. Enter into any business which is
substantially different from that presently conducted by the Consolidated
Companies taken as a whole except where the Investment made, and other funds
expended or committed with respect to such business, do not exceed $5,000,000 in
each new business.
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Section 7.09 ERISA. Take or fail to take any action with respect to any
Plan of any Consolidated Company or, with respect to its ERISA Affiliates, any
Plans which are subject to Title IV of ERISA or to continuation health care
requirements for group health plans under the Tax Code, including without
limitation (i) establishing any such Plan, (ii) amending any such Plan (except
where required to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded benefit liabilities,
as defined in Section 4001(a)(18) of ERISA, or any withdrawal liability under
Title IV of ERISA with respect to any such Plan, without first obtaining the
written approval of the Administrative Agent and the Required Lenders, where
such actions or failures could result in a Materially Adverse Effect.
Section 7.10 Additional Negative Pledges. Create or otherwise cause or
suffer to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) the terms of any agreement,
instrument or other document pursuant to which any Indebtedness permitted by
Section 7.01 (a) or (b) is incurred by any Consolidated Company, so long as such
prohibition or restriction applies only to the property or asset being financed
by such Indebtedness, and (ii) any requirement of applicable law or any
regulatory authority having jurisdiction over any of the Consolidated Companies.
Section 7.11 Limitation on Payment Restrictions Affecting Consolidated
Companies. Create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction on the ability of any Consolidated Company
to (i) pay dividends or make any other distributions on such Consolidated
Company's stock, or (ii) pay any indebtedness owed to Borrower or any other
Consolidated Company, or (iii) transfer any of its property or assets to
Borrower or any other Consolidated Company, except any consensual encumbrance or
restriction existing under the Credit Documents or under the Line of Credit
Agreement and related documents.
Section 7.12 Actions Under Certain Documents. Without the prior written
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), modify, amend, cancel or rescind any agreements or documents
evidencing or governing Subordinated Debt or the senior Indebtedness permitted
pursuant to Section 7.01 hereof, or make demand of payment or accept payment on
any Intercompany Loans permitted by Section 7.01, except that current interest
accrued thereon as of the date of this Agreement and all interest subsequently
accruing thereon (whether or not paid currently) may be paid unless a Default or
Event of Default has occurred and is continuing.
Article VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
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Section 8.01 Payments. Borrower shall fail to make promptly when due
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Revolving Loans, or Borrower shall fail to make within five
(5) Business Days after the due date thereof any payment of interest, fee or
other amount payable hereunder;
Section 8.02 Covenants Without Notice. Borrower shall fail to observe or
perform any covenant or agreement contained in Sections 6.07, 6.08, 6.11, and
Article VII; Section 8.03 Other Covenants. Borrower shall fail to observe or
perform any covenant or agreement contained in this Agreement, other than those
referred to in Sections 8.01 and 8.02, and, if capable of being remedied, such
failure shall remain unremedied for 30 days after the earlier of (i) Borrower's
obtaining knowledge thereof, or (ii) written notice thereof shall have been
given to Borrower by the Administrative Agent or any Lender;
Section 8.04 Representations. Any representation or warranty made or deemed
to be made by Borrower or any other Credit Party or by any of its officers under
this Agreement or any other Credit Document (including the Schedules attached
thereto), or any certificate or other document submitted to the Administrative
Agent or the Lenders by any such Person pursuant to the terms of this Agreement
or any other Credit Document, shall be incorrect in any material respect when
made or deemed to be made or submitted;
Section 8.05 Non-Payments of Other Indebtedness. Any Consolidated Company
shall fail to make when due (whether at stated maturity, by acceleration, on
demand or otherwise, and after giving effect to any applicable grace period) any
payment of principal of or interest on any Indebtedness (other than the
Obligations) exceeding $5,000,000 in the aggregate including, without
limitation, indebtedness outstanding under the Line of Credit Agreement;
Section 8.06 Defaults Under Other Agreements. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness exceeding $5,000,000 in the aggregate including, without
limitation, indebtedness outstanding under the Line of Credit Agreement, or any
other event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person to
accelerate, the maturity of such Indebtedness; or any such Indebtedness shall be
required to be prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity;
Section 8.07 Bankruptcy. Borrower or any other Consolidated Company shall
commence a voluntary case concerning itself under the Bankruptcy Code or an
involuntary case for bankruptcy is commenced against any Consolidated Company
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or any substantial
part of the property of any Consolidated Company; or any Consolidated Company
commences proceedings of its own bankruptcy or to be granted a suspension of
payments or any
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other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, relating to any Consolidated
Company or there is commenced against any Consolidated Company any such
proceeding which remains undismissed for a period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed for
a period of 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
Section 8.08 ERISA. A Plan of a Consolidated Company or a Plan subject to
Title IV of ERISA of any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan, Section 412 of
the Tax Code or Section 302 of ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such Plan under applicable
law, the terms of such Plan or Section 412 of the Tax Code or Section 303
of ERISA; or
(ii) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
(iii) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code
or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company under applicable
law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect;
Section 8.09 Money Judgment. A judgment or order for the payment of money
in excess of $5,000,000 or otherwise having a Materially Adverse Effect shall be
rendered against Borrower or any other Consolidated Company and such judgment or
order shall continue unsatisfied (in the case of a money judgment) and in effect
for a period of 30 days during which execution shall not be effectively stayed
or deferred (whether by action of a court, by agreement or otherwise);
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Section 8.10 Ownership of Credit Parties and Pledged Entities. If Borrower
shall at any time fail to own and control the required percentage of the voting
stock of any Guarantor, either directly or indirectly through a wholly-owned
Subsidiary of Borrower;
Section 8.11 Change in Control of Borrower. (a) Any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other
than the Xxxxxx Family shall become the "beneficial owner(s)" (as defined in
said Rule 13d-3) of more than twenty-five percent (25%) of the shares of the
outstanding common stock of Borrower entitled to vote for members of Borrower's
board of directors, or (b) any event or condition shall occur or exist which,
pursuant to the terms of any change in control provision, requires or permits
the holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in whole or
in part, or the maturity of such Indebtedness to be accelerated in any respect;
Section 8.12 Default Under Other Credit Documents. There shall exist or
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Borrower or
any other Credit Party, or at any time it is or becomes unlawful for Borrower or
any other Credit Party to perform or comply with its obligations under any
Credit Document, or the obligations of Borrower or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on Borrower
or any such Credit Party;
Section 8.13 Attachments. An attachment or similar action shall be made on
or taken against any of the assets of any Consolidated Company with an Asset
Value exceeding $5,000,000 in aggregate and is not removed, suspended or
enjoined within 60 days of the same being made or any suspension or injunction
being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, and upon the written or
telex request of the Required Lenders, shall, by written notice to Borrower,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Revolving Note to enforce
its claims against Borrower or any other Credit Party: (i) declare all Revolving
Loan Commitments terminated, whereupon the Revolving Loan Commitments of each
Lender shall terminate immediately and Fees shall forthwith become due and
payable without any other notice of any kind; and (ii) declare the principal of
and any accrued interest on the Revolving Loans, and all other Obligations owing
hereunder, to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by Borrower; provided, that, if an Event of Default specified
in Section 8.07 shall occur, the result which would occur upon the giving of
written notice by the Administrative Agent to any Credit Party, as specified in
clauses (i) and (ii) above, shall occur automatically without the giving of any
such notice. Article IX.
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THE AGENTS
Section 9.01 Appointment of Administrative Agent. Each Lender hereby
designates SunTrust Bank, Central Florida, National Association as the
"Administrative Agent" to administer all matters concerning the Revolving Loans
and to act as herein specified. Each Lender hereby irrevocably authorizes, and
each holder of any Revolving Note by the acceptance of a Revolving Note shall be
deemed irrevocably to authorize, the Administrative Agent to take such actions
on its behalf under the provisions of this Agreement, the other Credit
Documents, amid all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its agents or employees. The provisions of this Section
9.01 are solely for the benefit of the Administrative Agent, and Borrower and
the other Consolidated Companies shall not have any rights as third party
beneficiaries of any of the provisions hereof. In performing its functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligations towards or relationship of agency or trust with or for the Borrower
and the other Consolidated Companies.
Section 9.02 Nature of Duties of Administrative Agent. The Administrative
Agent shall have no duties or responsibilities except those expressly set forth
in this Agreement and the other Credit Documents. Neither the Administrative
Agent nor any of its officers, directors, employees or agents shall be liable
for any action taken or omitted by it as such hereunder or in connection
herewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be ministerial and administrative
in nature; the Administrative Agent shall not have by reason of this Agreement a
fiduciary relationship in respect of any Lender; and nothing in this Agreement,
express or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or the
other Credit Documents except as expressly set forth herein.
Section 9.03 Lack of Reliance on the Administrative Agent.
(a) Independently and without reliance upon the Administrative Agent
each Lender, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the taking
or not taking of any action in connection herewith, and (ii) its own
appraisal of the creditworthiness of the Credit Parties, and, except as
expressly provided in this Agreement, the Administrative Agent shall have
no duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the
Revolving Loans or at any time or times thereafter.
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(b) The Administrative Agent shall not be responsible to any Lender
for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, collectibility, priority or sufficiency of this
Agreement, the Revolving Notes, the Guaranty Agreement, or any other
documents contemplated hereby or thereby, or the financial condition of the
Credit Parties, or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of
this Agreement, the Revolving Notes, the Guaranty Agreement, or the other
documents contemplated hereby or thereby, or the financial condition of the
Credit Parties, or the existence or possible existence of any Default or
Event of Default; provided, however, to the extent that the Administrative
Agent has been advised that a Lender has not received any information
formally delivered to the Administrative Agent pursuant to Section 6.07,
the Administrative Agent shall deliver or cause to be delivered such
information to such Lender.
Section 9.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative
Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
Section 9.05 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Administrative
Agent may consult with legal counsel (including counsel for any Credit Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 9.06 Indemnification of Administrative Agent. To the extent the
Administrative Agent is not reimbursed and indemnified by the Credit Parties,
each Lender will reimburse and indemnify the Administrative Agent, ratably
according to the respective amounts of the Revolving Loans outstanding under all
Facilities (or if no amounts are outstanding, ratably in accordance with the
Total Commitments), in either case, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
the Administrative Agent in performing its duties hereunder, in any way relating
to or arising out of this Agreement or the other Credit Documents; provided that
no Lender shall be liable to the Administrative Agent for any portion of such
60
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
Section 9.07 The Administrative Agent in Its Individual Capacity. With
respect to its obligation to lend under this Agreement, the Revolving Loans made
by it and the Revolving Notes issued to it, the Administrative Agent shall have
the same rights and powers hereunder as any other Lender or holder of a
Revolving Note and may exercise the same as though it were not performing the
duties specified herein; and the terms "Lenders", "Required Lenders", "holders
of Revolving Notes", or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for services
in connection with this Agreement and otherwise without having to account for
the same to the Lenders.
Section 9.08 Holders of Revolving Notes. The Administrative Agent may deem
and treat the payee of any Revolving Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Revolving Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Revolving
Note or of any Revolving Note or Revolving Notes issued in exchange therefor.
Section 9.09 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and Borrower and may be removed at any time
with or without cause by the Required Lenders; provided, however, the
Administrative Agent may not resign or be removed until a successor
Administrative Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent subject to
Borrower's prior written approval, so long as no Event of Default has
occur-red and is continuing, which approval will not be unreasonably
withheld. If no successor Administrative Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, than the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent subject to Borrower's
prior written approval, which shall be a bank which maintains an office in
the United States of America, or a commercial bank organized under the laws
of the United States of America or any State thereof, or any Affiliate of
such bank, having a combined capital and surplus of at least $100,000,000.
If at any time SunTrust Bank, Central Florida is removed as a
61
Lender, SunTrust Bank, Central Florida shall simultaneously resign as
Administrative Agent.
(b) Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Article IX shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was an
Administrative Agent under this Agreement.
Section 9.10 Documentation Agent. Each Lender designates First Union
National Bank as Documentation Agent and agrees that the Documentation Agent
shall have no duties or obligations hereunder.
Section 9.11 Syndication Agent. Each Lender designates NationsBank, N.A. as
Syndication Agent and agrees that the Syndication Agent shall have no duties or
obligations hereunder.
Section 9.12 Co-Agent. Each Lender designates SouthTrust Bank, National
Association as Co-Agent and agrees that the Co-Agent shall have no duties or
obligations hereunder.
Article X.
MISCELLANEOUS
Section 10.01 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Administrative Agent and Borrower.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answer back is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate confirmation is received, or (iv) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; provided that notices to the
Administrative Agent shall not be effective until received.
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Section 10.02 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance specific purpose for
which given; provided that no amendment, waiver or consent shall, and for the
specific unless in writing and signed by all the Lenders do any of the
following: (i) waive any of the conditions specified in Section 4.01 or 4.02,
(ii) increase the Revolving Loan Commitments or other contractual obligations to
Borrower under this Agreement except pursuant to Section 3.03, (iii) reduce the
principal of, or interest on, the Revolving Notes or any fees hereunder, (iv)
postpone any date fixed for the payment in respect of principal of, or interest
on, the Revolving Notes or any fees hereunder, (v) change the percentage of the
Revolving Loan Commitments or of the aggregate unpaid principal amount of the
Revolving Notes, or the number or identity of Lenders which shall be required
for the Lenders or any of them to take any action hereunder, (vi) release any
Guarantor from its obligations under any Guaranty Agreement, (vii) modify the
definition of "Required Lenders," or (viii) modify this Section 10.02.
Notwithstanding the foregoing, no amendment, Waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required here in above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or under any other Credit Document.
Section 10.03 No Waiver, Remedies Cumulative. No failure or delay on the
part of the Administrative Agent, any Lender or any holder of a Revolving Note
in exercising any right or remedy hereunder or under any other Credit Document,
and no course of dealing between any Credit Party and the Administrative Agent,
any Lender or the holder of any Revolving Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
hereunder or under any other Credit Document preclude any other or farther
exercise thereof or the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Administrative Agent, any
Lender or the holder of any Revolving Note would otherwise have. No notice to or
demand on any Credit Party not required hereunder or under any other Credit
Document in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent, the Lenders or the holder of any Revolving
Note to any other or further action in any circumstances without notice or
demand.
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Section 10.04 Payment of Expenses, Etc. Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Administrative Agent in the administration (both before and after the
execution hereof and including reasonable expenses actually incurred
relating to advice of counsel as to the rights and duties of the
Administrative Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the
other Credit Documents and the documents and instruments referred to
therein, and any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees actually incurred and disbursements
of counsel for the Administrative Agent), and in the case of enforcement of
this Agreement or any Credit Document after an Event of Default, all such
reasonable, out-of-pocket costs and expenses (including, without
limitation, the reasonable fees actually incurred and disbursements of
counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 3.08(b), pay and hold each of the Lenders harmless
from and against any and all present and future stamp, documentary, and
other similar Taxes with respect to this Agreement, the Revolving Notes and
any other Credit Documents, any collateral described therein, or any
payments due thereunder, and save each Lender harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
to pay such Taxes; and
(iii) indemnified the Administrative Agent and each Lender and each
director, officer, employee, affiliate and agent thereof (each, an
"Indemnitee") from, and hold each of them harmless against, and reimburse
each Indemnitee, upon its demand, for any losses, claims, damages,
liabilities or other expenses ("Losses") incurred by such Indemnitee
insofar as such Losses arise out of or are in any way related to or result
from this Agreement, the Revolving Notes or any other Credit Documents or
the financing provided hereby, including, without limitation, Losses
arising in connection with any legal proceeding relating to any of the
foregoing (whether or not such Indemnitee is a party thereto) and the
reasonable attorneys fees and expenses actually incurred in connection
therewith; provided, however, that the foregoing shall not apply to any
Losses resulting from the gross negligence or willful misconduct of such
Indemnitee.
(iv) without limiting the indemnities set forth in subsection (iii)
above, indemnify each indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before, during or after
any Credit Party's ownership, operation, possession or control of its
business, property or facilities or before, on or after the date hereof,
and including also any amounts paid incidental to any
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compromise or settlement by the Indemnitee or Indemnitees to the holders of
any such claim), lawsuits, liabilities, obligations, actions, judgments,
suits, disbursements, encumbrances, liens, damages (including Without
limitation damages for contamination or destruction of natural resources),
penalties and fines of any kind or nature whatsoever (including without
limitation in all cases the reasonable fees actually incurred, other
charges and disbursements of counsel in connection therewith) incurred,
suffered or sustained by that Indemnitee based upon, arising under or
relating to Environmental Laws based on, arising out of or relating to in
whole or in part, the existence or exercise of any rights or remedies by
any Indemnitee under this Agreement, any other Credit Document or any
related documents (but excluding those incur-red, suffered or sustained by
any Indemnitee as a result of any action taken by or on behalf of the
Lenders with respect to any Subsidiary of Borrower (or the assets thereof
owned or controlled by the Lenders.
If and to the extent that the obligations of Borrower under this Section 10.04
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
Section 10.05 Right of Setoff. In addition to and not in limitation of all
rights of offset that any Lender or other holder of a Revolving Note may have
under applicable law, each Lender or other holder of a Revolving Note shall,
upon the occurrence of any Event of Default and whether or not such Lender or
such holder has made any demand or any Credit Party's obligations are matured,
have the right to appropriate and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit Documents, all deposits of any
Credit Party (general or special, time or demand, provisional or final) then or
thereafter held by and other indebtedness or property then or thereafter owing
by such Lender or other holder to any Credit Party, whether or not related to
this Agreement or any transaction hereunder. Each Lender shall promptly notify
Borrower of any offset hereunder.
Section 10.06 Benefit of Agreement.
(a) 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 Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Revolving Loans at, to or
for the account of, any of its branch offices or the office of an Affiliate
of such Lender.
(c) Each Lender may assign all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of any of
its Revolving Loan Commitments and the Revolving Loans at the time owing to
it and the Revolving Notes held by it) to any Eligible Assignee; provided,
however, that (i) the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Borrower must give their prior
written consent to such assignment (which consent shall not be unreasonably
65
withheld or delayed) unless such assignment is an Affiliate of the
assigning Lender, (ii) the amount of the Revolving Loan Commitments of the
assigning
Lender subject to each assignment (determined as of the date the assignment
and acceptance With respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000, and (iii) the
parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
Revolving Note or Notes subject to such assignment and, unless such
assignment is to an Affiliate of such Lender, a processing and recordation
fee of $2,500. Borrower shall not be responsible for such processing and
recordation fee or any costs or expenses incurred by any Lender or the
Administrative Agent in connection with such assignment. From and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof,
the assignee thereunder shall be a party hereto and to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement. Within five (5) Business Days
after receipt of the notice and the Assignment and Acceptance, Borrower, at
its own expense, shall execute and deliver to the Administrative Agent, in
exchange for the surrendered Revolving Note or Notes, a new Revolving Note
or Notes to the order of such assignee in a principal amount equal to the
applicable Revolving Loan Commitments or Revolving Loans assumed by it
pursuant to such Assignment and Acceptance and new Revolving Note or Notes
to the assigning Lender in the amount of its retained Revolving Loan
Commitment or Commitments or amount of its retained Revolving Loans. Such
new Revolving Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Note or
Notes, shall be dated the date of the surrendered Revolving Note or Notes
which they replace, and shall otherwise be in substantially the form
attached hereto.
(d) Each Lender may, without the consent of Borrower or the
Administrative Agent, sell participation's without restriction to one or
more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Revolving Loan Commitments in the Revolving Loans owing to it and the
Revolving Notes held by it), produced 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 participating bank or other
entity shall not be entitled to the benefit (except through its selling
Lender) of the cost protection provisions contained in Article III of this
Agreement, and (iv) Borrower and the Administrative Agent and other Lenders
shall continue to deal solely and directly with each Lender in connection
with such Lender's rights and obligations under this Agreement and the
other Credit Documents, and such Lender shall retain the sole right to
enforce the obligations of Borrower relating to the Revolving Loans and to
approve any amendment, modification or waiver of any provisions of this
Agreement. Any Lender selling a participation hereunder shall provide
prompt written notice to Borrower of the name of such participant.
66
(e) Any Lender or participant may, in connection with the assignment
or participation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrower or the other Consolidated
Companies furnished to such Lender by or on behalf of Borrower or any other
Consolidated Company. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed assignee or participant
shall agree to use the information only for the purpose of making any
necessary credit judgments with respect to this credit facility and not to
use the information in any manner prohibited by any law, including without
limitation, the securities laws of the United States of America. The
proposed participant or assignee shall agree not to disclose any of such
information except (i) to directors, employees, auditors or counsel to whom
it is necessary to show such information, each of whom shall be informed of
the confidential nature of the information, (ii) in any statement or
testimony pursuant to a subpoena or order by any court, governmental body
or other agency asserting jurisdiction over such entity, or as otherwise
required by law (provided prior notice is given to Borrower and the
Administrative Agent unless otherwise prohibited by the subpoena, order or
law), and (iii) upon the request or demand of any regulatory agency or
authority with proper jurisdiction. The proposed participant or assignee
shall further agree to return all documents or other written material and
copies thereof received from any Lender, the Administrative Agent or
Borrower relating to such confidential information unless otherwise
properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Revolving Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release the Lender from any of
its obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.08(b) have been levied
or imposed so as to require withholdings or deductions by Borrower and
payment by Borrower of additional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of any material
additional amounts as compensation for increased costs pursuant to Section
3.1 1 or for its reduced rate of return pursuant to Section 3.17, or (iii)
any Lender shall decline to consent to a modification or waiver of the
terms of this Agreement or the other Credit Documents requested by
Borrower, then and in such event, upon request from Borrower delivered to
such Lender and the Administrative Agent, such Lender shall assign, in
accordance with the provisions of Section 10.06(c), all of its rights and
obligations under this Agreement and the other Credit Documents to another
Lender or an Eligible Assignee selected by Borrower, in consideration for
the payment by such assignee to the Lender of the principal of, and
interest on, the outstanding Revolving Loans accrued to the date of such
assignment, and the assumption of such Lender's Revolving Loan Commitment
hereunder, together with any and all other amounts owing to such Lender
under any provisions of this Agreement or the other Credit Documents
accrued to the date of such assignment.
67
Section 10.07 Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE REVOLVING NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
REVOLVING NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR
COURT OF XXXXXX COUNTY, GEORGIA, OR AM OTHER COURT OF THE STATE OF GEORGIA
OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS.
(c) BORROWER HEREBY IRREVOCABLY DESIGNATES THE CORPORATION SERVICE
COMPANY, ATLANTA, GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO
RECEIVE, FOR AND ON BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH
RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR THE REVOLVING NOTES OR ANY DOCUMENT RELATED THERETO. IT
IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH LOCAL AGENT WILL
BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF SUCH PROCESS
BY MAIL TO BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW,
BUT THE FAILURE OF BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY
WAY THE SERVICE OF SUCH PROCESS. BORROWER FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS 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 BORROWER AT ITS SAID ADDRESS, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Administrative Agent,
any Lender, any holder of a Revolving Note or any Credit Party to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Borrower in any other
jurisdiction.
68
Section 10.08 Independent Nature of Lenders' Rights. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights pursuant to this
Agreement and its Revolving Notes, and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
Section 10.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
Section 10.10 Effectiveness; Survival.
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent pursuant to Section 10.01
or, in the case of the Lenders, shall have given to the Administrative
Agent written or telex notice (actually received) that the same has been
signed and mailed to them.
(b) The obligations of Borrower under Sections 3.08(b), 3.11, 3.13,
3.14, 3.17, and 10.04 hereof shall survive for ninety (90) days after the
payment in full of the Revolving Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement, the other Credit
Documents, and such other agreements and documents, the making of the
Revolving Loans hereunder, and the execution and delivery of the Revolving
Notes.
Section 10.11 Severability. In case any provision in or obligation under
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 10.12 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
Section 10.13 Change in Accounting Principles, Fiscal Year or Tax Laws. If
(i) any preparation of the financial statements referred to in Section 6.07
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or
69
successors thereto or agencies with similar functions) (other than changes
mandated by FASB 106) result in a material change in the method of calculation
of financial covenants, standards or terms found in this Agreement, (ii) there
is any change in Borrower's fiscal quarter or fiscal year, or (iii) there is a
material change in federal tax laws which materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, Borrower and the Required Lenders
agree to enter into negotiations in order to amend such provisions so as to
equitably reflect such changes with the desired result that the criteria for
evaluating any of the Consolidated Companies' financial condition shall be the
same after such changes as if such changes had not been made. Unless and until
such provisions have been so amended, the provisions of this Agreement shall
govern.
Section 10.14 Headings Descriptive, Entire Agreement. The headings of the
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement. This Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the terms of this
Agreement constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
Section 10.15 Time is of the Essence. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
Section 10.16 Usury. It is the intent of the parties hereto not to violate
any federal or state law, rule or regulation pertaining either to usury or to
the contracting for or charging or collecting of interest, and Borrower and
Lenders agree that, should any provision of this agreement or of the Revolving
Notes, or any act performed hereunder or thereunder, violate any such law, rule
or regulation, then the excess of interest contracted for or charged or
collected over the maximum lawful rate of interest shall be applied to the
outstanding principal indebtedness due to lenders by Borrower under this
Agreement.
Section 10.17 Construction. Should any provision of this Agreement require
judicial interpretation, the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be more strictly construed against the party who itself or
through its agents prepared the same, it being agreed that Borrower, the
Administrative Agent, the Lenders and their respective agents have participated
in the preparation hereof
Section 10.18 Waiver of Effect of Corporate Seal. Borrower represents and
warrants that it is not required to affix its corporate seal to this Agreement
or any other Credit Document pursuant to any Requirement of Law and waives any
shortening of the statute of limitations that may result from not affixing the
corporate seal to this Agreement or the other Credit Documents.
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Atlanta, Georgia, by their duly authorized
officers as of the day and year first above written.
Address for Notices: BORROWER:
00 X. Xxxxxx Xxxxxx XXXXXX SUPPLY, INC.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx. By:
---------------------------------------
J. Xxxxxxx Xxxx
Treasurer
By:
---------------------------------------
Xxx Xxxxxxxxxxx
Secretary
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
71
Address for Notices: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
000 X. Xxxxxx Xxxxxx Administrative Agent
MC 2064
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx By:
---------------------------------------
Name:
Telecopy No. 407/237-4076 Title:
Payment Office:
000 X. Xxxxxx Xxxxxx
XX 0000
Xxxxxxx, Xxxxxxx 00000
-----------------------------------------
Revolving Loan Commitment: $41,250,000.00
Pro Rata Share of Revolving Loan Commitment: 18.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
72
Address for Notices: FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
000 Xxxxx Xxxxxx
0xx Xxxxx
Mail Code FL0060
Xxxxxxxxxxxx, Xxxxxxx 00000 By:
---------------------------------------
Attn: Xx. Xxxxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
Telecopy No. 904/361-3560
Payment Office:
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Mail Code FL4009
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
-----------------------------------------
Revolving Loan Commitment: $37,500,000.00
Pro Rata Share of Revolving Loan Commitment: 16.67%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
73
Address for Notices: NATIONSBANK, N.A., individually and as
Syndication Agent
000 XX 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx By:
---------------------------------------
Name:
Title:
Telecopy No.
Payment Office:
NationsBank, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
-------------------------------------------
Revolving Loan Conunitment: $37,500,000.00
Pro Rata Share of Revolving Loan Conunitment: 16.67%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
74
Address for Notices: SOUTHTRUST BANK, NATIONAL
ASSOCIATION, individually and as
000 X. 00xx Xxxxxx Co-Agent
Xxxxxxxxxx, XX 00000
Attn: FL Corp. Banking, 9th Floor
By:
---------------------------------------
Telecopy No. 727/898-5319 Name:
Title:
Payment Office:
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000
------------------------------------------
Revolving Loan Commitment: $30,000,000.00
Pro Rata Share of Revolving Loan Commitment: 13.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
75
Address for Notices:
ABN AMRO Bank N.V.
Southeast Financial Center
000 X. Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Ms. Xxxxxxx Xxx Xxxxxx
By:
---------------------------------------
Telecopy No.: (000) 000-0000 Name: Xxxxxxx Xxx Xxxxxx
Title: Vice President
Payment Office:
000 X. XxXxxxx Xxxxxx, Xxxxx 0000 By:
---------------------------------------
Xxxxxxx, XX 00000-0000 Name: Xxxxxx Xxxxxxxx
Attention: Loan Administration Title: Corporate Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
-----------------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 8.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
76
Address for Notices: PNC BANK, N.A.
000 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxx By:
---------------------------------------
Name: Xxxxx X. Xxxx
Telecopy No. 412/762-6484 Title: Vice President
Payment Office:
Two PNC Xxxxx/ Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Ms. Xxxxx Truchman
-----------------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 8.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
77
Address for Notices: WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxx
By:
---------------------------------------
Name: Xxxxx Xxxxx
Title: Banking Officer
Telecopy No. (000) 000-0000
Payment Office:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxxxxx
------------------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 8.33%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
78
Address for Notices: THE FIFTH THIRD BANK
MD 109054
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx. By:
---------------------------------------
Name:
Telecopy No. 513/579-5226 Title:
Payment Office:
NM 109054
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
-----------------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
79
Address for Notices: HIBERNIA NATIONAL BANK
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxxx By:
---------------------------------------
Name:
Telecopy No. 504/533-5344 Title:
Payment Office:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
------------------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00%
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
80
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (the "First Amendment")
is made and entered into as of September 29, 1999, by and among XXXXXX SUPPLY,
INC. ("Borrower"), a Florida corporation, SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, a national banking association, FIRST UNION NATIONAL BANK,
a national banking association, BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., a national banking association, SOUTHTRUST BANK, NATIONAL
ASSOCIATION, a national banking association, ABN AMRO BANK, N.V., a banking
corporation organized under the laws of the Netherlands, PNC BANK, N.A., a
national banking association, WACHOVIA BANK, N.A., a national banking
association, THE FIFTH THIRD BANK, a national banking association, HIBERNIA
NATIONAL BANK, a national banking association and such other financial
institutions becoming a party hereto from time to time, (individually, a
"Lender" and collectively, the "Lenders"), SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), FIRST UNION NATIONAL BANK, as documentation agent
for the Lenders (in such capacity, the "Documentation Agent"), BANK OF AMERICA,
N.A., formerly known as NATIONSBANK, N.A., as syndication agent for the Lenders
(in such capacity, the "Syndication Agent") and SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Co-Agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H:
WHEREAS, the Lenders, the Administrative Agent, the Documentation Agent,
the Syndication Agent, the Co-Agent and the Borrower are party to that certain
Revolving Credit Agreement dated as of January 26, 1999 (the "Revolving Credit
Agreement"), pursuant to which the Lenders made available to Borrower credit
facilities subject to the terms and conditions set forth therein; and
WHEREAS, the Lenders, the Administrative Agent, the Documentation Agent,
the Syndication Agent, the Co-Agent and the Borrower, at the request of the
Borrower, desire to (i) increase the aggregate principal amount of Revolving
Loan Commitments by $50,000,000 to $275,000,000 pursuant to Section 3.03 of the
Revolving Credit Agreement and (ii) amend certain terms of the Revolving Credit
Agreement, all as more particularly set forth below.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby amend the
Revolving Credit Agreement and agree as follows:
1. The Revolving Credit Agreement is hereby amended by replacing the first
Recital in its entirety with the following:
81
WHEREAS, Borrower has requested that the Lenders establish a
$275,000,000 revolving credit facility in favor of Borrower, and subject to
the terms and conditions contained herein, the Lenders are willing to
establish such revolving credit facility in favor of Borrower subject to
the terms and conditions set forth below;
2. The Revolving Credit Agreement is hereby amended by replacing the
definition of "Revolving Loan Commitment" or "Commitment" in Section 1.01 in its
entirety with the following:
"Revolving Loan Commitment" or "Commitment" shall mean, at any time
for any Lender, the amount of such commitment set forth opposite such
Lender's name on the signature pages of the First Amendment to Revolving
Credit Agreement, dated as of September 29, 1999, by and among the
Borrower, the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Co-Agent and the Lenders, or in any assignment
hereafter executed by any assignee of a Lender pursuant to Section 10.06,
as the same may be increased or decreased from time to time as a result of
any reduction thereof pursuant to Section 2.03, any assignment thereof
pursuant to Section 10.06, or any amendment thereof pursuant to Section
10.02.
3. The Revolving Credit Agreement is hereby amended by replacing Section
6.08(c) in its entirety with the following:
(c) Minimum Net Worth. Maintain a Consolidated Net Worth of not less
than (i) $365,000,000 plus (ii) 50% of Consolidated Net Income (but not
Consolidated Net Loss) for each fiscal quarter ended after January 30, 1998
and on or prior to the date of determination.
4. The Revolving Credit Agreement is hereby amended by replacing Section
6.08(d) in its entirety with the following:
(d) Dividends. Not declare or pay any dividend on its capital stock,
or make any payment to purchase, redeem, retire or acquire any of its
Subordinated Debt or capital stock or any option, warrant, or other right
to acquire such Subordinated Debt or capital stock, other than:
(i) dividends payable solely in shares of capital stock;
(ii) any payments made for the repurchase of outstanding capital
stock previously issued by Borrower in an aggregate amount at any time
not to exceed $60,000,000; and
(iii) cash dividends declared and paid and all other such
payments made, after January 29, 1993, in an aggregate amount at any
time not to exceed (x) $1,000,000, plus (y) 50% of Consolidated Net
Income (or minus 100% of
[SIGNATURE PAGE TO FIRST AMENDMENT
TO REVOLVING CREDIT AGREEMENT]
82
Consolidated Net Loss) earned during Borrower's fiscal year ended
January 29, 1993, and thereafter (such period to be treated as one
accounting period); provided, further, however, no such dividend or
other payment may be declared or paid pursuant to clause (ii) or (iii)
above unless no Default or Event of Default exists at the time of such
declaration or payment, or would exist as a result of such declaration
or payment.
5. The Revolving Credit Agreement is hereby amended by replacing Section
7.05 in its entirety with the following:
Section 7.05 Sale and Leaseback Transactions. Sell or transfer any
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any
Consolidated Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except to the extent
that at the time any such property is sold and leased back, and after
giving effect thereto, the aggregate amount paid (whether in cash or
otherwise) for all such property sold and leased back by the Consolidated
Companies since the Closing Date does not exceed five percent (5%) of the
Consolidated Companies' total assets as reported in the most recent audited
annual financial statements delivered to the Administrative Agent pursuant
to Section 6.07(a).
6. The effectiveness of this Amendment is conditioned upon the
Administrative Agent's receipt of the following, each dated as of the date
hereof, in form and substance reasonably satisfactory in all respects to the
Administrative Agent:
(a) The duly executed original counterparts of this First Amendment;
(b) The duly completed Revolving Notes evidencing the Revolving Loan
Commitments, as increased by this First Amendment;
(c) The duly executed Consent and Ratification of Guaranty (Revolving
Credit Agreement), dated as of the date hereof, by and among each of the
Subsidiaries of Borrower, listed on the signature pages thereof, the
Administrative Agent, the Documentation Agent, the Syndication Agent, the
Co-Agent and the Lenders;
(d) Certificates of the Secretary or Assistant Secretary of each of
the Credit Parties certifying (i) the name, title and true signature of
each officer of such entities executing this First Amendment and the other
Credit Documents, (ii) the bylaws or comparable governing documents of such
entities, and (iii) the certificates or articles of incorporation of each
Credit Party;
83
(e) Certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of incorporation or
organization of such Credit Party; and
(f) The favorable opinion of counsel to the Credit Parties addressed
to the Administrative Agent, the Documentation Agent, the Syndication
Agent, the Co-Agent and each of the Lenders.
7. Borrower represents and warrants that as of the date hereof and after
giving effect to the transactions contemplated by the First Amendment and the
Credit Documents, (i) the assets of Borrower, at fair valuation and based on
their present fair saleable value, will exceed Borrower's debts, including
contingent liabilities, (ii) the remaining capital of Borrower will not be
unreasonably small to conduct Borrower's business, and (iii) Borrower will not
have incurred debts, or have intended to incur debts, beyond its ability to pay
such debts as they mature. For purposes of this paragraph, "debt" means any
liability on a claim, and "claim" means (a) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (b) the right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
8. Except as expressly provided herein, the Revolving Credit Agreement
shall continue in full force and effect, and the unamended terms and conditions
of the Revolving Credit Agreement are expressly incorporated herein and ratified
and confirmed in all respects. This First Amendment is not intended to be or to
create, nor shall it be construed as, a novation or an accord and satisfaction.
9. From and after the date hereof, references to the Revolving Credit
Agreement shall be references to the Revolving Credit Agreement as amended
hereby.
10. This First Amendment constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Neither this First
Amendment nor any provision hereof may be changed, waived, discharged, modified
or terminated orally, but only by an instrument in writing signed by the parties
required to be a party thereto pursuant to Section 10.02 of the Revolving Credit
Agreement.
11. THIS FIRST AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
84
12. This First Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which, taken
together, shall constitute one and the same document, and shall be effective as
of the date first above written.
13. Borrower shall reimburse the Administrative Agent for the reasonable
fees and expenses of counsel for the Administrative Agent in connection with
this First Amendment.
85
IN WITNESS WHEREOF, Borrower, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Co-Agent and the Lenders have caused this
First Amendment to be executed as of the date first above written.
Address for Notices: BORROWER:
00 X. Xxxxxx Xxxxxx XXXXXX SUPPLY, INC.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx By:
-------------------------------
J. Xxxxxxx Xxxx
Treasurer
By:
-------------------------------
Xxx Xxxxxxxxxxx
Secretary
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
000 X. Xxxxxx Xxxxxx Administrative Agent
MC 2064
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx By:
-------------------------------
Xxxxxxx X. Xxxx, III
Telecopy No. 407/237-4076 First Vice President
Payment Office:
000 X. Xxxxxx Xxxxxx
XX 0000
Xxxxxxx, Xxxxxxx 00000
--------------------------------
Revolving Loan Commitment: $58,750,000.00
Pro Rata Share of Revolving Loan Commitment: 21.36364%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices: FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx By:
------------------------------
Telecopy No. 904/361-3560 Name:
Title:
Payment Office:
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Mail Code FL4009
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
--------------------------------
Revolving Loan Commitment: $45,833,333.33
Pro Rata Share of Revolving Loan Commitment: 16.66667%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices: BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., individually and as
Syndication Agent
000 XX 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx By:
-------------------------------
Telecopy No. Name:
Title:
Payment Office:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
-------------------------------
Revolving Loan Commitment: $50,833,333.33
Pro Rata Share of Revolving Loan Commitment: 18.48485%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices: SOUTHTRUST BANK, NATIONAL
ASSOCIATION, individually and as Co-Agent
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Florida Corporate Banking
(Orlando)
Telecopy No. 727/898-5319 By:
-------------------------------
Name:
Title:
Payment Office:
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxx Xxxxxxxx (727/825-2733)
Telecopy No. 727/898-5419
--------------------------------
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Revolving Loan Commitment: 10.90909%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices:
ABN AMRO BANK, N.V.
Southwest Financial Center
000 X. Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Ms. Xxxxxxx Xxx Xxxxxx
Telecopy No. (000)000-0000 By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
--------------------------------
Revolving Loan Commitment: $22,916,666.67
Pro Rata Share of Revolving Loan Commitment: 8.33333%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices: PNC BANK, N.A.
000 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Mr. Xxxx Xxxx
Telecopy No. 412/762-6484 By:
-------------------------------
Name:
Title:
Payment Office:
Two PNC Plaza/ Liberty Avenue.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxx XxXxxxx
--------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 6.81818%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices:
WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx XxXxxxx
Telecopy No. (000)000-0000 By:
-------------------------------
Name:
Title:
Payment Office:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxxxxx
--------------------------------
Revolving Loan Commitment: $22,916,666.67
Pro Rata Share of Revolving Loan Commitment: 8.33333%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
Address for Notices: THE FIFTH THIRD BANK
MD 109054
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx
Telecopy No. 513/579-5226 By:
-------------------------------
Name:
Title:
Payment Office:
MD 109054
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
--------------------------------
Revolving Loan Commitment: $13,750,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00000%
Address for Notices: HIBERNIA NATIONAL BANK
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxxx
Telecopy No. 504/533-5344 By:
-------------------------------
Name:
Title:
Payment Office:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
--------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 4.09091%
[SIGNATURE PAGE TO FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT]
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment") is
made and entered into as of December 20, 2000, by and among XXXXXX SUPPLY, INC.
("Borrower"), a Florida corporation, SUNTRUST BANK, a Georgia banking
corporation and successor by merger to SunTrust Bank, Central Florida, National
Association, FIRST UNION NATIONAL BANK, a national banking association, BANK OF
AMERICA, N.A., a national banking association, formerly known as NATIONSBANK,
N.A., SOUTHTRUST BANK, an Alabama corporation, formerly known as SouthTrust
Bank, N.A., ABN AMRO BANK, N.V., a banking corporation organized under the laws
of the Netherlands, PNC BANK, N.A., a national banking association, WACHOVIA
BANK, N.A., a national banking association, THE FIFTH THIRD BANK, a national
banking association, HIBERNIA NATIONAL BANK, a national banking association and
such other financial institutions becoming a party hereto from time to time
(individually, a "Lender" and collectively, the "Lenders"), SUNTRUST BANK, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), FIRST UNION NATIONAL BANK, as documentation agent for the Lenders (in
such capacity, the "Documentation Agent"), BANK OF AMERICA, N.A., as syndication
agent for the Lenders (in such capacity, the "Syndication Agent") and SOUTHTRUST
BANK, as Co-Agent for the Lenders (in such capacity, the "Co-Agent").
W I T N E S S E T H:
WHEREAS, the Lenders, the Administrative Agent, the Documentation Agent,
the Syndication Agent, the Co-Agent and the Borrower are party to that certain
Revolving Credit Agreement dated as of January 26, 1999, as amended by that
certain First Amendment to Revolving Credit Agreement dated as of September 29,
1999 (as so amended and as further amended restated or otherwise modified from
time to time, the "Revolving Credit Agreement"), pursuant to which the Lenders
made available to Borrower credit facilities subject to the terms and conditions
set forth therein;
WHEREAS, the Lenders, the Administrative Agent, the Documentation Agent,
the Syndication Agent, the Co-Agent and the Borrower, at the request of the
Borrower, desire to amend certain terms of the Revolving Credit Agreement, all
as more particularly set forth below;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby amend the
Revolving Credit Agreement and agree as follows:
A. AMENDMENTS
14. Section 7.01 of the Revolving Credit Agreement is hereby amended by
adding the following subsections (h) and (i) in order:
97
(h) Indebtedness consisting of (x) Series A Senior Notes dated
December 21, 2000 due November 30, 2003, with an average life of three
years in the aggregate amount of $19,000,000 with an interest rate of
8.27%; (y) Series B Senior Notes dated December 21, 2000 due November 30,
2005, with an average life of three years in the aggregate amount of
$28,000,000 with an interest rate of 8.27%; and (z) Series C Senior Notes
dated December 21, 2000 due November 30, 2007, with an average life of five
years in the aggregate amount of $103,000,000 with an interest rate of
8.42%.
(i) Indebtedness incurred in connection with financing the
construction of the Borrower's new branch located in Miami, Florida;
provided that the aggregate principal amount of Indebtedness incurred in
connection with the Miami branch does not exceed $15,000,000; and
Indebtedness incurred in connection with financing the construction of the
Borrower's headquarters located in Orlando, Florida; provided that the
aggregate principal amount of Indebtedness incurred in connection with the
Orlando headquarters does not exceed $25,000,000.
15. Section 7.02 of the Revolving Credit Agreement is hereby amended by
replacing subsection (f) with the following subsection (f) and adding the
following subsection (g) in order:
(f) any Lien on any property securing Indebtedness described in
Section 7.01(i), incurred for the purpose of financing all or any part of
the construction cost of such property and any refinancing thereof;
provided that such Lien does not extend to any other property; and
(g) Liens (other than those permitted by paragraphs (a) through (f) of
this Section 7.02) encumbering assets having an Asset Value not greater
than $20,000,000 in the aggregate at any one time.
B. MISCELLANEOUS
1. Borrower represents and warrants that after giving effect to this
Amendment and the transactions contemplated hereby, all of the representations
and warranties set forth in Article V of the Revolving Credit Agreement are true
and correct in all material respects and no Default or Event of Default has
occurred and is continuing as of the date hereof.
2. Except as expressly provided herein, the Revolving Credit Agreement
shall continue in full force and effect, and the unamended terms and conditions
of the Revolving Credit Agreement are expressly incorporated herein and ratified
and confirmed in all respects. This Amendment is not intended to be or to
create, nor shall it be construed as, a novation or an accord and satisfaction.
98
3. From and after the date hereof, references to the Revolving Credit
Agreement shall be references to the Revolving Credit Agreement as amended
hereby.
4. This Amendment constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof. Neither this Amendment nor any
provision hereof may be changed, waived, discharged, modified or terminated
orally, but only by an instrument in writing signed by the parties required to
be a party thereto pursuant to Section 10.02 of the Revolving Credit Agreement.
5. THIS AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
6. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which, taken together, shall
constitute one and the same document, and shall be effective as of the date
first above written.
7. Borrower shall reimburse the Administrative Agent for the reasonable
fees and expenses of counsel for the Administrative Agent in connection with
this Amendment.
99
IN WITNESS WHEREOF, Borrower, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Co-Agent and the Lenders have caused this
Amendment to be executed as of the date first above written.
Address for Notices: BORROWER:
00 X. Xxxxxx Xxxxxx XXXXXX SUPPLY, INC.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx By:
-------------------------------
J. Xxxxxxx Xxxx
Treasurer
Attest:
---------------------------
Xxx Xxxxxxxxxxx
Secretary
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: SUNTRUST BANK, successor by merger to
SunTrust Bank, Central Florida, National
Association, as a Lender and as
000 X. Xxxxxx Xxxxxx Administrative Agent
MC 2064
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx
Telecopy No. 407/237-4076 By:
--------------------------------
Xxxxxxx X. Xxxx, III
Payment Office: Vice President
000 X. Xxxxxx Xxxxxx
XX 0000
Xxxxxxx, Xxxxxxx 00000
--------------------------------
Revolving Loan Commitment: $58,750,000.00
Pro Rata Share of Revolving Loan Commitment: 21.36364%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: FIRST UNION NATIONAL BANK, as a Lender
and as Documentation Agent
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx By:
-------------------------------
Name:
Telecopy No. 904/361-3560 Title:
Payment Office:
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Mail Code FL4009
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
--------------------------------
Revolving Loan Commitment: $45,833,333.33
Pro Rata Share of Revolving Loan Commitment: 16.66667%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., as a Lender and as
Syndication Agent
000 XX 0xx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx By:
-------------------------------
Telecopy No. Name:
Title:
Payment Office:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
-------------------------------
Revolving Loan Commitment: $50,833,333.33
Pro Rata Share of Revolving Loan Commitment: 18.48485%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: SOUTHTRUST BANK, formerly known as
SouthTrust Bank, N.A., as a Lender and as
Co-Agent
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Florida Corporate Banking
Telecopy No. 727/898-5319 By:
-------------------------------
Name:
Title:
Payment Office:
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxx Xxxxxxxx (727/825-2733)
Telecopy No. 727/898-5419
--------------------------------
Revolving Loan Commitment: $30,000,000
Pro Rata Share of Revolving Loan Commitment: 10.90909%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices:
ABN AMRO BANK, N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Credit Administration
Telecopy No. 312/992-5111 By:
-------------------------------
Name:
Title:
and
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxx Xxxxxxx
Telecopy No. 770/399-7397
Payment Office:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Loan Administration
--------------------------------
Revolving Loan Commitment: $22,916,666.67
Pro Rata Share of Revolving Loan Commitment: 8.33333%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: PNC BANK, N.A.
000 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Mr. Xxxx Xxxx By:
-------------------------------
Telecopy No. 412/762-6484 Name:
Title:
Payment Office:
Two PNC Plaza/ Liberty Avenue.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxx XxXxxxx
--------------------------------
Revolving Loan Commitment: $18,750,000.00
Pro Rata Share of Revolving Loan Commitment: 6.81818%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices:
WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx XxXxxxx
Telecopy No. 404/332-5016 By:
-------------------------------
Name:
Title:
Payment Office:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxxxxx
--------------------------------
Revolving Loan Commitment: $22,916,666.67
Pro Rata Share of Revolving Loan Commitment: 8.33333%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: THE FIFTH THIRD BANK
MD 109054
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx
Telecopy No. 513/579-5226 By:
----------------------------
Name:
Title:
Payment Office:
MD 109054
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
--------------------------------
Revolving Loan Commitment: $13,750,000.00
Pro Rata Share of Revolving Loan Commitment: 5.00000%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
Address for Notices: HIBERNIA NATIONAL BANK
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxxx By:_______________________________
Name:
Telecopy No. 504/533-5344 Title:
Payment Office:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx
--------------------------------
Revolving Loan Commitment: $11,250,000.00
Pro Rata Share of Revolving Loan Commitment: 4.09091%
[SIGNATURE PAGE TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT]
109
