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REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 30, 2001
AMONG
XXXXX RENTS, INC.
as Borrower,
XXXXX RENTS, INC. PUERTO RICO
as Co-Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
SUNTRUST BANK
as Administrative Agent
and
FIRST UNION NATIONAL BANK
as Syndication Agent
================================================================================
SUNTRUST EQUITABLE SECURITIES CORPORATION
as Arranger and Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION...............................................................................1
SECTION 1.1. DEFINITIONS.....................................................................................1
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS........................................................19
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION.............................................................19
SECTION 1.4. TERMS GENERALLY................................................................................19
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS.................................................................20
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES..............................................................20
SECTION 2.2. REVOLVING LOANS................................................................................20
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.............................................................21
SECTION 2.4. SWINGLINE COMMITMENT...........................................................................21
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC.........................................................22
SECTION 2.6. FUNDING OF BORROWINGS..........................................................................23
SECTION 2.7. INTEREST ELECTIONS.............................................................................24
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS..............................................25
SECTION 2.9. REPAYMENT OF LOANS.............................................................................25
SECTION 2.10. EVIDENCE OF INDEBTEDNESS....................................................................25
SECTION 2.11. PREPAYMENTS.................................................................................26
SECTION 2.11. PREPAYMENTS TC..............................................................................26
SECTION 2.12. INTEREST ON LOANS...........................................................................28
SECTION 2.13. FEES........................................................................................29
SECTION 2.14. COMPUTATION OF INTEREST AND FEES............................................................29
SECTION 2.15. INABILITY TO DETERMINE INTEREST RATES.......................................................30
SECTION 2.16. ILLEGALITY..................................................................................30
SECTION 2.17. INCREASED COSTS.............................................................................31
SECTION 2.18. FUNDING INDEMNITY...........................................................................32
SECTION 2.19. TAXES.......................................................................................32
SECTION 2.20. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.................................34
SECTION 2.21. MITIGATION OF OBLIGATIONS...................................................................35
SECTION 2.22. LETTERS OF CREDIT...........................................................................36
SECTION 2.23. GUARANTY OBLIGATIONS; WAIVERS...............................................................41
SECTION 2.24. SAVINGS CLAUSE..............................................................................43
SECTION 2.25. INCREASE IN COMMITMENT......................................................................44
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT..........................................45
SECTION 3.1. CONDITIONS TO EFFECTIVENESS....................................................................45
SECTION 3.2. EACH CREDIT EVENT..............................................................................47
SECTION 3.3. DELIVERY OF DOCUMENTS..........................................................................47
SECTION 3.4. TERMINATION OF EXISTING CREDIT AGREEMENT.......................................................47
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................................................47
SECTION 4.1. EXISTENCE; POWER...............................................................................47
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION............................................................48
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS...........................................................48
SECTION 4.4. FINANCIAL STATEMENTS...........................................................................48
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS...........................................................48
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS............................................................49
SECTION 4.7. INVESTMENT COMPANY ACT, ETC....................................................................49
SECTION 4.8. TAXES..........................................................................................49
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SECTION 4.9. MARGIN REGULATIONS.............................................................................49
SECTION 4.10. ERISA.......................................................................................50
SECTION 4.11. OWNERSHIP OF PROPERTY.......................................................................50
SECTION 4.12. DISCLOSURE..................................................................................50
SECTION 4.13. LABOR RELATIONS.............................................................................50
SECTION 4.14. SUBSIDIARIES................................................................................51
ARTICLE V AFFIRMATIVE COVENANTS..........................................................................51
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION.....................................................51
SECTION 5.2. NOTICES OF MATERIAL EVENTS.....................................................................52
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS.................................................................53
SECTION 5.4. COMPLIANCE WITH LAWS, ETC......................................................................53
SECTION 5.5. PAYMENT OF OBLIGATIONS.........................................................................53
SECTION 5.6. BOOKS AND RECORDS..............................................................................53
SECTION 5.7. VISITATION, INSPECTION, ETC....................................................................54
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE...........................................................54
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT..........................................................54
SECTION 5.10. ADDITIONAL SUBSIDIARIES....................................................................54
ARTICLE VI FINANCIAL COVENANTS............................................................................55
SECTION 6.1. TOTAL DEBT TO EBITDA RATIO.....................................................................55
SECTION 6.2. TOTAL ADJUSTED DEBT TO TOTAL ADJUSTED CAPITAL RATIO............................................55
SECTION 6.3. FIXED CHARGE COVERAGE RATIO....................................................................55
SECTION 6.4. MINIMUM CONSOLIDATED NET WORTH.................................................................56
ARTICLE VII NEGATIVE COVENANTS.............................................................................56
SECTION 7.1. INDEBTEDNESS...................................................................................56
SECTION 7.2. NEGATIVE PLEDGE................................................................................57
SECTION 7.3. FUNDAMENTAL CHANGES............................................................................58
SECTION 7.4. INVESTMENTS, LOANS, ETC........................................................................59
SECTION 7.5. RESTRICTED PAYMENTS............................................................................60
SECTION 7.6. SALE OF ASSETS.................................................................................60
SECTION 7.7. TRANSACTIONS WITH AFFILIATES...................................................................60
SECTION 7.8. RESTRICTIVE AGREEMENTS.........................................................................60
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS................................................................61
SECTION 7.10. AMENDMENT TO MATERIAL DOCUMENTS.............................................................61
SECTION 7.11. ACCOUNTING CHANGES..........................................................................61
ARTICLE VIII EVENTS OF DEFAULT..............................................................................61
SECTION 8.1. EVENTS OF DEFAULT..............................................................................61
ARTICLE IX THE ADMINISTRATIVE AGENT.......................................................................64
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT............................................................64
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT.......................................................65
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT...................................................65
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.....................................................65
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT...............................................................66
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY............................................66
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.................................................................66
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS..................................................67
ARTICLE X MISCELLANEOUS..................................................................................67
SECTION 10.1. NOTICES.....................................................................................67
SECTION 10.2. WAIVER; AMENDMENTS..........................................................................69
SECTION 10.3. EXPENSES; INDEMNIFICATION...................................................................70
SECTION 10.4. SUCCESSORS AND ASSIGNS......................................................................71
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SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS..................................74
SECTION 10.6. WAIVER OF JURY TRIAL........................................................................74
SECTION 10.7. RIGHT OF SETOFF.............................................................................75
SECTION 10.8. COUNTERPARTS; INTEGRATION...................................................................75
SECTION 10.9. SURVIVAL....................................................................................75
SECTION 10.10. SEVERABILITY................................................................................76
SECTION 10.11. CONFIDENTIALITY.............................................................................76
SECTION 10.12. INTEREST RATE LIMITATION....................................................................76
Schedules
Schedule 1.1 - Applicable Margin and Applicable Percentage
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.7 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made and entered
into as of March, 2001, by and among XXXXX RENTS, INC., a Georgia corporation
(the "BORROWER"), XXXXX RENTS, INC. PUERTO RICO, a Puerto Rico corporation (the
"CO-BORROWER"), the several banks and other financial institutions from time to
time party hereto (the "LENDERS"), SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the "ADMINISTRATIVE Agent") and FIRST
UNION NATIONAL BANK, as Syndication Agent (the "SYNDICATION AGENT").
WITNESSETH:
WHEREAS, the Borrower and Co-Borrower have requested that the Lenders
establish a $110,000,000 revolving credit facility in favor of the Borrower with
a $15,000,000 subfacility in favor of the Co-Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments as defined
herein, are willing to severally establish the requested revolving credit
facility in favor of the Borrower and the requested subfacility in favor of the
Co-Borrower
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Co-Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"ACQUISITION" means any transaction in which the Borrower or any of its
Subsidiaries directly or indirectly (i) acquires any ongoing business, (ii)
acquires all or substantially all of the assets of any Person or division
thereof, whether through a purchase of assets, merger or otherwise, (iii)
acquires (in one transaction or as the most recent transaction in a series of
transactions) control of at least a majority of the voting stock of a
corporation, other than the acquisition of voting stock of a wholly-owned
Subsidiary solely in connection with the organization and capitalization of that
Subsidiary by the Borrower or another Subsidiary Loan Party, or (iv) acquires
control of more than 50% ownership interest in any partnership, joint venture or
limited liability company.
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
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"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For purposes of
this definition "CONTROL" shall mean the power, directly or indirectly, either
to (i) vote 10% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"AGGREGATE REVOLVING COMMITMENTS" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean with respect to all Eurodollar Revolving
Loans outstanding on any date and all letter of credit fees, as the case may be,
a percentage per annum determined by reference to the applicable Total Debt to
EBITDA Ratio in effect on such date as set forth on Schedule 1.1 attached
hereto; provided, that a change in the Applicable Margin resulting from a change
in the Total Debt to EBITDA Ratio shall be effective on the second day after
which the Borrower has delivered the financial statements required by Section
5.1(a) or (b) and the compliance certificate required by Section 5.1 (c);
provided further, that if at any time the Borrower shall have failed to deliver
such financial statements and such certificate, the Applicable Margin shall be
at Level IV until such time as such financial statements and certificate are
delivered, at which time the Applicable Margin shall be determined as provided
above. Notwithstanding the foregoing, the Applicable Margin from the Closing
Date until the financial statement and compliance certificate for the fiscal
quarter ending on March 31, 2001 are delivered shall be at Level III.
"APPLICABLE PERCENTAGE" shall mean, with respect to the commitment fee,
as of any date, the percentage per annum determined by reference to the
applicable Total Debt to EBITDA Ratio in effect on such date as set forth on
Schedule 1.1 attached hereto; provided, that a change in the Applicable
Percentage resulting from a change in the Total Debt to EBITDA Ratio shall be
effective on the second day after which the Borrower has delivered the financial
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statements required by Section 5.1(a) or (b) and the compliance certificate
required by Section 5.1 (c); provided, further, that if at any time the Borrower
shall have failed to deliver such financial statements and such certificate, the
Applicable Percentage shall be at Level IV until such time as such financial
statements and certificate are delivered, at which time the Applicable
Percentage shall be determined as provided above. Notwithstanding the foregoing,
the Applicable Percentage for the commitment fee from the Closing Date until the
financial statement and compliance certificate for the fiscal quarter ending on
March 31, 2001 are delivered shall be at Level III.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning in the introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and
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the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) other than the Xxxxxxxxxx Family of 33(1)/3 or more of the total voting
power of shares of stock entitled to vote in the election of directors of the
Borrower; or (c) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were neither (i)
nominated by the current board of directors or (ii) appointed by directors so
nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law, rule
or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.17(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"CO-BORROWER" shall have the meaning given to such term in the
introductory paragraph hereof.
"CO-BORROWER SUBFACILITY AMOUNT" shall mean $15,000,000
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
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"CONSOLIDATED EBITDA" shall mean, for the Borrower and its Subsidiaries
for any period, an amount equal to the sum of (a) Consolidated Net Income for
such period plus (b) to the extent deducted in determining Consolidated Net
Income for such period, (i) Consolidated Interest Expense, (ii) income tax
expense, (iii) depreciation (excluding depreciation of rental merchandise) and
amortization and (iv) all other non-cash charges, determined on a consolidated
basis in accordance with GAAP in each case for such period.
"CONSOLIDATED EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA and (b) Consolidated Lease Expense.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (a) Consolidated
Interest Expense for such period and (b) Consolidated Lease Expense for such
period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, total cash interest expense, including without limitation the
interest component of any payments in respect of Capital Leases Obligations
capitalized or expensed during such period (whether or not actually paid during
such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets and (iii) any equity interest of
the Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary on the date that such Person's
assets are acquired by the Borrower or any Subsidiary.
"CONSOLIDATED NET WORTH" shall mean, as of any date of determination,
the Borrower's total shareholders' equity, determined in accordance with GAAP.
"CONSOLIDATED TOTAL ADJUSTED CAPITAL" shall mean, as of any date of
determination with respect to the Borrower, the sum of (i) Consolidated Total
Adjusted Debt as of such date and (ii) Consolidated Net Worth as of such date.
"CONSOLIDATED TOTAL ADJUSTED DEBT" shall mean, as of any date of
determination, (i) Consolidated Total Debt, plus (ii) to the extent not included
in clause (i), all operating lease
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obligations of Borrower and its Subsidiaries measured at the present value of
such obligations (using a 10% discount rate).
"CONSOLIDATED TOTAL DEBT" shall mean, at any time, all then currently
outstanding obligations, liabilities and indebtedness of the Borrower and its
subsidiaries on a consolidated basis of the types described in the definition of
Indebtedness (other than as described in subsection (xi) thereof), but
including, but not limited to all Loans and LC Exposure. Notwithstanding
anything contained herein to the contrary, for purposes of calculating
Consolidated Total Debt as of any date, the obligations, liabilities and
indebtedness of the Borrower under the Loan Facility Agreement shall be limited
to fifty percent (50%) of the aggregate outstanding principal amount of the
Loans (as such term is defined in the Loan Facility Agreement) on such date.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section 2.12(c).
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means any Subsidiary which is incorporated or
organized under the laws of any State of the United States, the District of
Columbia or Puerto Rico.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section
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414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA
and Section 412 of the Code, is treated as a single employer under Section 414
of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes
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imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located and (c) in the case of a Foreign
Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (iii) is attributable to such Foreign Lender's failure
to comply with Section 2.19(e).
"EXISTING CREDIT AGREEMENT" shall mean that certain Second Amended And
Restated Revolving Credit And Term Loan Agreement, dated as of January 6, 1995
and as heretofore amended, among the Borrower, SunTrust Bank (formerly known as
Trust Company Bank), First Union National Bank (formerly known as First Union
National Bank of Georgia), Bank One, N.A., formerly know as The First National
Bank Of Chicago, as assignee of NBD Bank, SouthTrust Bank, (formerly known as
SouthTrust Bank of Georgia, N.A.) and SunTrust Bank, as Agent.
"EXISTING PUERTO RICO LOAN AGREEMENT" shall mean that certain Term Loan
Agreement dated as of November 21, 2000, by and among the Co-Borrower, the
Borrower as guarantor, the several banks and other financial institutions from
time to time party thereto and SunTrust Bank as Administrative Agent.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal 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 by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% 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.
"FISCAL YEAR" shall mean a fiscal year of the Borrower; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., the "Fiscal
Year 2000") refers to the Fiscal Year ending during such calendar year.
"FIXED CHARGE COVERAGE RATIO" shall mean, at any date, the ratio of (a)
Consolidated EBITDAR for the four consecutive fiscal quarters of the Borrower
ending on such date to (b) Consolidated Fixed Charges for the four consecutive
fiscal quarters of the Borrower ending on such date.
"FOREIGN LENDER" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is not a Domestic
Subsidiary.
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"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(g), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness
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described in clauses (i) through (v) above, (viii) all Indebtedness of a third
party secured by any Lien on property owned by such Person, whether or not such
Indebtedness has been assumed by such Person, (ix) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any common stock of such Person, and (x) Off-Balance Sheet
Liabilities. The Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit E,
among the Borrower, the Co-Borrower, the Subsidiary Loan Parties and the
Administrative Agent, as amended, restated, supplemented or otherwise modified
from time to time.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated February 2001 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing 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 end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period would end on the
next preceding Business Day;
(iii) any Interest Period which begins on the last Business
Day of a calendar month or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period shall end on the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Revolving
Commitment Termination Date.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to Section 2.22.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrower for the issuance of Letters of
Credit in an aggregate face amount not to exceed $5,000,000.
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"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"LETTER OF CREDIT" shall mean any stand-by letter of credit issued
pursuant to Section 2.22 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the rate per annum for deposits in Dollars for a period
equal to such Interest Period appearing on the display designated as Page 3750
on the Dow Xxxxx Markets Service (or such other page on that service or such
other service designated by the British Banker's Association for the display of
such Association's Interest Settlement Rates for Dollar deposits) as of 11:00
a.m. (London, England time) on the day that is two Business Days prior to the
first day of the Interest Period or if such Page 3750 is unavailable for any
reason at such time, the rate which appears on the Reuters Screen ISDA Page as
of such date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined by the
Administrative Agent to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits in Dollars are
offered to the Administrative Agent two (2) Business Days preceding the first
day of such Interest Period by leading banks in the London interbank market as
of 10:00 a.m. for delivery on the first day of such Interest Period, for the
number of days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of the Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing). A covenant not to xxxxx x
Xxxx or a "negative pledge" shall not be determined a Lien for purposes of this
Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes,
the LC Documents, the Subsidiary Guarantee Agreement, the Indemnity and
Contribution Agreement
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and any and all other instruments, agreements, documents and writings executed
in connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower, the Co-Borrower and the
Subsidiary Loan Parties.
"LOAN FACILITY AGREEMENT" shall mean that certain Loan Facility
Agreement and Guaranty dated as of the date hereof by and among the Borrower,
SunTrust Bank, as Servicer and the financial institutions from time to time a
party thereto, as Participants, as amended, restated, supplemented or otherwise
modified from time to time.
"LOAN FACILITY DOCUMENTS" shall mean, collectively, the Loan Facility
Agreement and any and all other instruments, agreements, documents and writings
executed in connection with the foregoing.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"XXXXXXXXXX FAMILY" shall mean, collectively, Xxxxxx Xxxxxxx
Xxxxxxxxxx, Xx., his spouse, his children, his grandchildren and any trust which
may now be or hereafter established for the sole benefit of any of the foregoing
persons.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower or the Loan Parties taken as a whole to perform any of their respective
obligations under the Loan Documents (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders under any of the Loan
Documents or (iv) the legality, validity or enforceability of any of the Loan
Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans
and Letters of Credit) of any one or more of the Borrower and the Subsidiaries
in an aggregate principal amount exceeding $500,000.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NOTES" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
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"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth in
Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower and the
Co-Borrower to the Administrative Agent, the Issuing Bank or any Lender
(including the Swingline Lender) pursuant to or in connection with this
Agreement or any other Loan Document, including without limitation, all
principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to the Borrower or the Co-Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
all reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of counsel to the
Administrative Agent and any Lender (including the Swingline Lender) incurred
pursuant to this Agreement or any other Loan Document), whether direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, other than indemnity obligations for any
breach of any representation or warranty which are customary in nonrecourse
sales of such assets, (ii) any liability of such Person under any sale and
leaseback transactions which do not create a liability on the balance sheet of
such Person, (iii) any liability of such Person under any so-called "synthetic"
lease transaction or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheet of such
Person.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
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"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ACQUISITION" shall mean any Acquisition so long as (a) at
the time of such Acquisition, no Default or Event of Default is in existence,
(b) after giving effect to such Acquisition, no Default or Event of Default is
in existence, (c) such Acquisition has been approved by the board of directors
of the Person being acquired prior to any public announcement thereof, (d) the
total consideration (including all cash, debt, stock and other property, and
assumption of obligations for borrowed money) of any single Acquisition or
series of related Acquisitions does not exceed $10,000,000, and (e) the total
consideration (including all cash, debt, stock and other property, and
assumption of obligations for borrowed money) of all Acquisitions during any
fiscal year does not exceed $20,000,000. As used herein, Acquisitions will be
considered related Acquisitions if the sellers under such Acquisitions are the
same Person or any Affiliate thereof.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(ii) 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 in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not
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secure any monetary obligations and do not materially detract from the
value of the affected property or materially interfere with the
ordinary conduct of business of the Borrower and its Subsidiaries taken
as a whole;
(vii) other Liens incidental to the conduct of its business
or the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof in
the operation of its business; and
(viii) Liens on insurance policies owned by the Borrower on
the lives of its officers securing policy loans obtained from the
insurers under such policies, provided that (A) the aggregate amount
borrowed on each policy shall not exceed the loan value thereof, and
(B) the Borrower shall not incur any liability to repay any such loan;
provided, that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;
(ii) commercial paper having an A or better rating, at the
time of acquisition thereof, of S&P or Moody's and in either case
maturing within one year from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within one year of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (i) above
and entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
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"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRO RATA SHARE" shall mean with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Loan funded under such
Commitment), and the denominator of which shall be the sum of such Commitments
of all Lenders (or if such Commitments have been terminated or expired or the
Loans have been declared to be due and payable, all Loans of all Lenders funded
under such Commitments).
"PUERTO RICO COMMITMENT AMOUNT" shall mean $15,000,000, as reduced from
time to time pursuant to Section 2.8.
"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, and any
successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding at least
51% of the aggregate Revolving Commitments at such time or if the Lenders have
no Commitments outstanding, then Lenders holding at least 51% of the Loans.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer, the controller or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of the
foregoing with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer, the controller or the
treasurer of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and the
Co-Borrower and to participate in Letters of Credit and Swingline Loans in an
aggregate principal amount not
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exceeding the amount set forth with respect to such Lender on the signature
pages to this Agreement, or in the case of a Person becoming a Lender after the
Closing Date, the amount of the assigned "Revolving Commitment" as provided in
the Assignment and Acceptance Agreement executed by such Person as an assignee,
as the same may be changed pursuant to terms hereof.
"REVOLVING COMMITMENT TERMINATION DATE" shall mean the earliest of (i)
the third anniversary date of this Agreement, (ii) the date on which the
Revolving Commitments are terminated pursuant to Section 2.8(b) or Section 8.1
and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable (whether by
acceleration or otherwise).
"REVOLVING CREDIT AVAILABILITY PERIOD" shall mean the period from the
Closing Date to the Revolving Commitment Termination Date.
"REVOLVING CREDIT EXPOSURE" shall mean, for any Lender, the sum of such
Lender's Revolving Loans, LC Exposure and Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A-1, or a
promissory note of the Co-Borrower payable to the order of a requesting Lender
in the principal amount of such Lender's Puerto Rico Commitment Amount, in
substantially the form of Exhibit A-2.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower or the Co-Borrower under its Revolving
Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SOUTHTRUST LOAN FACILITY AGREEMENT" means that certain Loan Facility
Agreement and Guaranty dated as of August 31, 2000, by and between the Borrower
and SouthTrust Bank, as amended, restated, supplemented or otherwise modified
from time to time.
"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability company,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent. Unless otherwise indicated, all references to "Subsidiary"
hereunder shall mean a Subsidiary of the Borrower.
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"SUBSIDIARY GUARANTEE AGREEMENT" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit D, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any Subsidiary that is not a Foreign
Subsidiary.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $8,000,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank, or any other Lender that
may agree to make Swingline Loans hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower payable
to the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially the form of Exhibit B.
"SWINGLINE RATE" shall mean, for any Interest Period, the rate as
offered by the Administrative Agent and accepted by the Borrower. The Borrower
is under no obligation to accept this rate and the Administrative Agent is under
no obligation to provide it.
"SYNTHETIC LEASE DOCUMENTS" shall mean, collectively, the Master
Agreement, dated as of September 30, 1996, among the Borrower, SunTrust Banks,
Inc., as lessor (the "Lessor"), SunTrust Bank and SouthTrust Bank of Georgia,
N.A., as lenders, and SunTrust Bank, as agent, the Lease Agreement, dated as of
September 30, 1996, between the Lessor and the Borrower and any supplements
thereto, the Construction Agency Agreement, dated as of September 30, 1996,
among the Lessor and the Borrower, the Guaranty, dated as of September 30, 1996,
executed by the Borrower in favor of the Funding Parties (as defined therein),
and any and all security agreements and Assignments (Construction Contract,
Architect's Agreement, Permits, Licenses and Governmental Approvals, and Plans
and Specifications and Drawings) executed from time to time by the Sponsor in
favor of the Lessor, and any modifications of or replacements for any or all of
the foregoing.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"TOTAL ADJUSTED DEBT TO TOTAL ADJUSTED CAPITAL RATIO" shall mean, at
any date of determination, the ratio of (a) Consolidated Total Adjusted Debt as
of such date to (b) Consolidated Total Adjusted Capital as of such date.
"TOTAL DEBT TO EBITDA RATIO" shall mean, at any date of determination,
the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated
EBITDA for the four consecutive fiscal quarters of the Borrower ending on such
date.
"TRANSACTION DOCUMENTS" shall mean, collectively, the Loan Documents
and the Loan Facility Documents.
"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"UNIFORM COMMERCIAL CODE" or "UCC" means the Uniform Commercial Code as
in effect from time to time in the State of Georgia.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving Eurodollar
Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant
in Article VI to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require,
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any pronoun shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "will" shall be construed
to have the same meaning and effect as the word "shall". In the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the word "to" means "to but excluding". Unless
the context requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as it was originally executed or
as it may from time to time be amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any reference herein to any Person shall be construed to
include such Person's successors and permitted assigns, (iii) the words
"hereof", "herein" and "hereunder" and words of similar import shall be
construed to refer to this Agreement as a whole and not to any particular
provision hereof, (iv) all references to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon the
terms and conditions herein set forth, (i) the Lenders hereby establish in favor
of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2(a) and to make
Revolving Loans to the Co-Borrower in accordance with Section 2.2(b), (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.22,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with
Section 2.4, and (iv) each Lender agrees to purchase a participation interest in
the Letters of Credit and the Swingline Loans pursuant to the terms and
conditions hereof; provided, that in no event shall the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC
Obligations exceed at any time the Aggregate Revolving Commitments from time to
time in effect.
SECTION 2.2. REVOLVING LOANS. (a) Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (i) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment,
or (ii) the sum of the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitments. During the Availability Period,
the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans in
accordance with the terms and conditions of this Agreement; provided, that the
Borrower may not borrow or reborrow should there exist a Default or Event of
Default.
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(b) Subject to the terms and conditions set forth herein,
each Lender severally agrees to make Revolving Loans to the Co-Borrower, from
time to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (i) such Lender's Revolving
Credit Exposure exceeding such Lender's Revolving Commitment, (ii) the sum of
the aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate
Revolving Commitments or (iii) the aggregate principal amount of all Revolving
Loans to the Co-Borrower exceeding the Co-Borrower SubFacility Amount. During
the Availability Period, the Co-Borrower shall be entitled to borrow, prepay and
reborrow Revolving Loans in accordance with the terms and conditions of this
Agreement in an aggregate principal amount not to exceed the Co-Borrower
Subfacility Amount; provided, that the Co-Borrower may not borrow or reborrow
should there exist a Default or Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 attached hereto (a "NOTICE OF REVOLVING
BORROWING") (x) prior to 11:00 a.m. one (1) Business Day prior to the requested
date of each Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business
Days prior to the requested date of each Eurodollar Borrowing. Each Notice of
Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate
principal amount of such Borrowing, (ii) the date of such Borrowing (which shall
be a Business Day), (iii) whether the Borrowing will be made by the Borrower or
the Co-Borrower, (iv) the Type of such Revolving Loan comprising such Borrowing
and (v) in the case of a Eurodollar Borrowing, the duration of the initial
Interest Period applicable thereto (subject to the provisions of the definition
of Interest Period). Each Revolving Borrowing shall consist entirely of Base
Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less than $1,000,000
or a larger multiple of $500,000, and the aggregate principal amount of each
Base Rate Borrowing shall not be less than $1,000,000 or a larger multiple of
$100,000; provided, that Base Rate Loans made pursuant to Section 2.5 or Section
2.22(c) may be made in lesser amounts as provided therein. At no time shall the
total number of Eurodollar Borrowings outstanding at any time exceed six.
Promptly following the receipt of a Notice of Revolving Borrowing in accordance
herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender's Revolving Loan to be made as part of the
requested Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower, from time to time from the Closing Date to the Revolving
Commitment Termination Date, in an aggregate principal amount outstanding at any
time not to exceed the lesser of (i) the Swingline Commitment then in effect and
(ii) the difference between the Aggregate Revolving Commitments and the
aggregate Revolving Credit Exposures of all Lenders; provided, that the
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and
reborrow Swingline Loans in accordance with the terms and conditions of this
Agreement.
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SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) The
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing ("NOTICE OF
SWINGLINE BORROWING") prior to 10:00 a.m. on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Swingline
Rate or any other interest rate as agreed between the Borrower and the Swingline
Lender and shall have an Interest Period (subject to the definition thereof) as
agreed between the Borrower and the Swingline Lender. The aggregate principal
amount of each Swingline Loan shall be not less than $100,000 or a larger
multiple of $50,000, or such other minimum amounts agreed to by the Swingline
Lender and the Borrower. The Swingline Lender will make the proceeds of each
Swingline Loan available to the Borrower in Dollars in immediately available
funds at the account specified by the Borrower in the applicable Notice of
Swingline Borrowing not later than 1:00 p.m. on the requested date of such
Swingline Loan. The Administrative Agent will notify the Lenders on a quarterly
basis if any Swingline Loans occurred during such quarter.
(b) The Swingline Lender, at any time and from time to
time in its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on its behalf),
give a Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders (including the Swingline Lender) to make Base Rate Loans in an amount
equal to the unpaid principal amount of any Swingline Loan. Each Lender will
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Swingline Lender in accordance
with Section 2.6, which will be used solely for the repayment of such Swingline
Loan.
(c) If for any reason a Base Rate Borrowing may not be
(as determined in the sole discretion of the Administrative Agent), or is not,
made in accordance with the foregoing provisions, then each Lender (other than
the Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan
pursuant to Section 2.5(b) or to purchase the participating interests pursuant
to Section 2.5(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any
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Lender's Revolving Commitment, (iii) the existence (or alleged existence) of any
event or condition which has had or could reasonably be expected to have a
Material Adverse Effect, (iv) any breach of this Agreement or any other Loan
Document by the Borrower, the Administrative Agent or any Lender or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest thereon for
each day from the date of demand thereof at the Federal Funds Rate. Until such
time as such Lender makes its required payment, the Swingline Lender shall be
deemed to continue to have outstanding Swingline Loans in the amount of the
unpaid participation for all purposes of the Loan Documents. In addition, such
Lender shall be deemed to have assigned any and all payments made of principal
and interest on its Loans and any other amounts due to it hereunder, to the
Swingline Lender to fund the amount of such Lender's participation interest in
such Swingline Loans that such Lender failed to fund pursuant to this Section,
until such amount has been purchased in full.
SECTION 2.6. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made
by it hereunder on the proposed date thereof by wire transfer in immediately
available funds by 11:00 a.m. to the Administrative Agent at the Payment Office;
provided, that the Swingline Loans will be made as set forth in Section 2.5. The
Administrative Agent will make such Loans available to the Borrower or the
Co-Borrower, as the case may be, by promptly crediting the amounts that it
receives, in like funds by the close of business on such proposed date, to an
account maintained by the Borrower or the Co-Borrower, as the case may be, with
the Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been
notified by any Lender prior to 5 p.m. one (1) Business Day prior to the date of
a Borrowing in which such Lender is participating that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower or the
Co-Borrower, as the case may be, on such date a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender on the date of such 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 for up to two (2) days and
thereafter at the rate specified for such Borrowing. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for such Borrowing. Nothing
in this subsection shall be deemed to relieve any Lender from its obligation to
fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
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(c) All Revolving Borrowings shall be made by the Lenders
on the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
SECTION 2.7. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type
specified in the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "NOTICE OF
CONVERSION/CONTINUATION") that is to be converted or continued, as the case may
be, (x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of
a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3)
Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;
and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of "Interest Period". If any
such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does
not specify an Interest Period, the Borrower shall be deemed to have selected an
Interest Period of one month. The principal amount of any resulting Borrowing
shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base
Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in
respect of any Eurodollar Borrowing, the Borrower shall have failed to deliver a
Notice of Conversion/ Continuation, then, unless such Borrowing is repaid as
provided herein, the Borrower shall be deemed to have elected to convert such
Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or
continued as, a Eurodollar Borrowing if a Default or an Event of Default exists,
unless
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the Administrative Agent and each of the Lenders shall have otherwise consented
in writing. No conversion of any Eurodollar Loans shall be permitted except on
the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of
Conversion/Continuation, the Administrative Agent shall promptly notify each
Lender of the details thereof and of such Lender's portion of each resulting
Borrowing.
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS.
(a) Unless previously terminated, all Revolving
Commitments and the Swingline Commitment shall terminate on the Revolving
Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.8 shall be in an
amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii)
no such reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures of
all Lenders. Any such reduction in the Aggregate Revolving Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment and the LC Commitment.
SECTION 2.9. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving
Loans made by Borrower pursuant to Section 2.2(a) shall be due and payable by
Borrower (together with accrued and unpaid interest thereon) on the Revolving
Commitment Termination Date.
(b) The outstanding principal amount of all Revolving
Loans made by Co-Borrower pursuant to Section 2.2(b) shall be due and payable by
Co-Borrower (together with accrued and unpaid interest thereon) on the Revolving
Commitment Termination Date.
(c) The principal amount of each Swingline Borrowing
shall be due and payable (together with accrued interest thereon) on the earlier
of (i) the last day of the Interest Period applicable to such Borrowing and (ii)
the Revolving Commitment Termination Date.
SECTION 2.10. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower and the Co-Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to time
under this Agreement. The Administrative Agent shall maintain appropriate
records in which shall be recorded (i) the Revolving Commitment of each Lender,
(ii) the amount of each Loan made hereunder by each Lender, the Class and Type
thereof and the
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Interest Period applicable thereto, (iii) the date of each continuation thereof
pursuant to Section 2.7, (iv) the date of each conversion of all or a portion
thereof to another Type pursuant to Section 2.7, (v) the date and amount of any
principal or interest due and payable or to become due and payable from the
Borrower and the Co-Borrower to each Lender hereunder in respect of such Loans
and (vi) both the date and amount of any sum received by the Administrative
Agent hereunder from the Borrower and the Co-Borrower in respect of the Loans
and each Lender's Pro Rata Share thereof. The entries made in such records shall
be prima facie evidence of the existence and amounts of the obligations of the
Borrower and the Co-Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower or the Co-Borrower to repay the Loans (both principal
and unpaid accrued interest) of such Lender in accordance with the terms of this
Agreement.
(b) At the request of any Lender (including the Swingline
Lender) at any time, the Borrower and the Co-Borrower each agrees that it will
execute and deliver to such Lender a Revolving Credit Note and, in the case of
the Swingline Lender only, a Swingline Note, payable to the order of such
Lender.
SECTION 2.11. PREPAYMENTS.
(a) The Borrower and the Co-Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent no later than
(i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. not less
than three (3) Business Days prior to any such prepayment, (ii) in the case of
any prepayment of any Base Rate Borrowing, not less than one Business Day prior
to the date of such prepayment, and (iii) in the case of Swingline Borrowings,
prior to 11:00 a.m. on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Share of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.12(e); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower, or the Co-Borrower, as the case may be, shall also pay
all amounts required pursuant to Section 2.18. Each partial prepayment of any
Loan (other than a Swingline Loan) shall be in an amount not less than
$1,000,000 and in integral multiples of $500,000. Each prepayment of a Borrowing
shall be applied ratably to the Loans comprising such Borrowing.
(b) If at any time the Revolving Credit Exposure of all
Lenders exceeds the aggregate principal amount of the Revolving Credit
Commitments at such time, the Borrower shall immediately repay Swingline Loans
and Revolving Loans in an amount equal to such excess, together with all accrued
and unpaid interest on such excess amount and any amounts due under Section
2.17. Each prepayment of a Borrowing shall be applied ratably first to the
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Swingline Loans to the full extent thereof, then to the Revolving Base Rate
Loans to the full extent thereof, and finally to Revolving Eurodollar Loans to
the full extent thereof. If after giving effect to prepayment of all Swingline
Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds
the aggregate principal amount of the Revolving Credit Commitments at such time,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Issuing Bank and the
Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees
thereon to be held as collateral for the LC Exposure. Such account shall be
administered in accordance with Section 2.22(g) hereof.
(c) If at any time the Revolving Loans to the Co-Borrower
exceeds the Co-Borrower Subfacility Amount, as reduced pursuant to Section 2.8
or otherwise, the Co-Borrower shall immediately repay Revolving Loans in an
amount equal to such excess, together with all accrued and unpaid interest on
such excess amount and any amounts due under Section 2.17. Each prepayment of a
Borrowing shall be applied ratably to the Revolving Base Rate Loans to the full
extent thereof, and finally to Revolving Eurodollar Loans to the full extent
thereof.
Immediately upon receipt by the Borrower of proceeds of the sale or disposition
by the Borrower or any of its Subsidiaries of any of their assets, the total
consideration of which exceeds $10,000,000 in the aggregate (including
condemnation proceeds), the Borrower shall prepay the Loans and deposit cash
collateral for the LC Exposure in an amount equal to all such proceeds, net of
commissions, taxes paid or reasonably estimated by the Borrower to be payable in
connection with such transaction in the current year or the immediately
following year and other reasonable and customary transaction costs, fees and
expenses properly attributable to such transaction and payable by the Borrower
in connection therewith (in each case, paid to non-Affiliates). Any such
prepayment shall be applied in accordance with paragraph (e) below.
(d) If the Borrower issues any capital stock, any other
equity interests, or any debt securities, then no later than the Business Day
following the date of receipt of the proceeds thereof, the Borrower shall prepay
the Loans and deposit cash collateral for the LC Exposure in an amount equal to
all such proceeds, net of underwriting discounts and commissions and other
reasonable costs paid to non-Affiliates in connection therewith. Any such
prepayment shall be applied in accordance with paragraph (e) below.
(e) Any prepayments made by the Borrower pursuant to
paragraphs (c) or (d) above shall be applied as follows: first, to fees and
reimbursable expenses of the Administrative Agent then due and payable pursuant
to any of the Loan Documents; second, to all other fees (other than LC Fees) and
reimbursable expenses of the Lenders then due and payable pursuant to any of the
Loan Documents, pro rata to the Lenders based on their respective Pro Rata
Shares of thereof; third, to interest and LC Fees then due and payable on Loans
made to the Borrower and Letters of Credit issued for the account of the
Borrower, pro rata to the Lenders based on their respective Pro Rata Shares
thereof; fourth, to the principal balance of the Revolving Loans and any
unreimbursed LC Disbursements until the same shall have been paid in full, pro
rata to the Lenders based on their respective Pro Rata Shares thereof; and
fifth, to an account with the Administrative Agent in the name of the
Administrative Agent and for the benefit of the Issuing
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Bank and the Lenders to hold as cash collateral for the LC Exposure (other than
any unreimbursed LC Disbursements paid in accordance with the fourth clause
above), in an amount of up to 105% of the LC Exposure, such account to be
administered in accordance with Section 2.22(g) hereof.
SECTION 2.12. INTEREST ON LOANS.
(a) The Borrower shall pay interest with respect to the
Revolving Loans made to the Borrower pursuant to Section 2.2(a) and the
Co-Borrower shall pay interest with respect to the Revolving Loans made to the
Co-Borrower pursuant to Section 2.2(b) (i) on each Base Rate Loan at the Base
Rate in effect from time to time and (ii) on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan
plus the Applicable Margin in effect from time to time and the Co-Borrower shall
pay interest with respect to its respective Revolving Loans made pursuant to
Section 2.2(b), (i) on each Base Rate Loan at the Base Rate in effect from time
to time and (ii) on each Eurodollar Loan at the Adjusted LIBO Rate for the
applicable Interest Period in effect for such Loan plus the Applicable Margin in
effect from time to time.
(b) The Borrower shall pay interest on each Swingline
Loan at the Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after
acceleration, at the option of the Required Lenders, the Borrower and the
Co-Borrower shall pay interest ("DEFAULT INTEREST") with respect to all
Eurodollar Loans at the rate otherwise applicable for the then-current Interest
Period plus an additional 2% per annum until the last day of such Interest
Period, and thereafter, and with respect to all Base Rate Loans (including all
Swingline Loans) and all other Obligations hereunder (other than Loans), at an
all-in rate in effect for Base Rate Loans, plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding the date
of any repayment thereof. Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Commitment Termination Date. Interest on all
outstanding Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans having an
Interest Period in excess of three months or 90 days, respectively, on each day
which occurs every three months or 90 days, as the case may be, after the
initial date of such Interest Period, and on the Revolving Commitment
Termination Date. Interest on each Swingline Loan shall be payable on the
maturity date of such Loan, which shall be the last day of the Interest Period
applicable thereto, and on the Revolving Commitment Termination Date. Interest
on any Loan which is converted into a Loan of another Type or which is repaid or
prepaid shall be payable on the date of such conversion or on the date of any
such repayment or prepayment (on the amount repaid or prepaid) thereof. All
Default Interest shall be payable on demand.
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(e) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone, promptly
confirmed in writing). Any such determination shall be conclusive and binding
for all purposes, absent manifest error.
SECTION 2.13. FEES.
(a) The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously agreed upon
by the Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Percentage (determined daily in accordance with
Schedule 1.1) on the daily amount of the unused Revolving Commitment of such
Lender during the Availability Period. For purposes of computing commitment fees
with respect to the Revolving Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent of the outstanding Revolving Loans and
LC Exposure of such Lender.
(c) Letter of Credit Fees. The Borrower agrees to pay (i)
to the Administrative Agent, for the account of each Lender, a letter of credit
fee with respect to its participation in each Letter of Credit, which shall
accrue at the Applicable Margin then in effect on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) attributable to such Letter of Credit during the
period from and including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter expires or is drawn in full (including
without limitation any LC Exposure that remains outstanding after the Revolving
Commitment Termination Date) and (ii) to the Issuing Bank for its own account a
fronting fee, which shall accrue at the rate of 0.125% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the Availability Period (or until the date
that such Letter of Credit is irrevocably cancelled, whichever is later), as
well as the Issuing Bank's standard fees with respect to issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder.
(d) Payments. The fees described in clause (a) and (b)
above shall be payable quarterly in arrears on the last day of each March, June,
September and December, commencing on March 31, 2001 and on the Revolving
Commitment Termination Date (and if later, the date the Loans and LC Exposure
shall be repaid in their entirety).
SECTION 2.14. COMPUTATION OF INTEREST AND FEES.
All computations of interest and fees hereunder 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). Each determination by the Administrative Agent of an interest amount
or
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fee hereunder shall be made in good faith and, except for manifest error, shall
be final, conclusive and binding for all purposes.
SECTION 2.15. INABILITY TO DETERMINE INTEREST RATES. If prior
to the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower and the
Co-Borrower, absent manifest error) that, by reason of circumstances
affecting the relevant interbank market, adequate means do not exist
for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice
from the Required Lenders that the Adjusted LIBO Rate does not
adequately and fairly reflect the cost to such Lenders (or Lender, as
the case may be) of making, funding or maintaining their (or its, as
the case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower, or
Co-Borrower as the case may be, prepays such Loans in accordance with this
Agreement. Unless the Borrower notifies the Administrative Agent at least one
Business Day before the date of any Eurodollar Revolving Borrowing for which a
Notice of Revolving Borrowing has previously been given that it elects not to
borrow on such date, then such Revolving Borrowing shall be made as a Base Rate
Borrowing.
SECTION 2.16. ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to
continue or convert outstanding Loans as or into Eurodollar Loans, shall be
suspended. In the case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation
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would avoid the need for giving such notice and if such designation would not
otherwise be disadvantageous to such Lender in the good faith exercise of its
discretion.
SECTION 2.17. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise included
in the determination of the Adjusted LIBO Rate hereunder against assets
of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted
LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have
determined that on or after the date of this Agreement any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital (or on the capital of
such Lender's or the Issuing Bank's parent corporation) as a consequence of its
obligations hereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's parent corporation could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies or the policies
of such Lender's or the Issuing Bank's parent corporation with respect to
capital adequacy) then, from time to time, within five (5) Business Days after
receipt by the Borrower of written demand by such Lender (with a copy thereof to
the Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation, as the case may
be, specified in paragraph (a) or (b) of this
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Section shall be delivered to the Borrower (with a copy to the Administrative
Agent) and shall be conclusive, absent manifest error. The Borrower shall pay
any such Lender or the Issuing Bank, as the case may be, such amount or amounts
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to demand such
compensation;
SECTION 2.18. FUNDING INDEMNITY. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, or (c) the failure by
the Borrower or the Co-Borrower to borrow, prepay, convert or continue any
Eurodollar Loan on the date specified in any applicable notice (regardless of
whether such notice is withdrawn or revoked), then, in any such event, the
Borrower or the Co-Borrower shall compensate each Lender, within five (5)
Business Days after written demand from such Lender, for any loss, cost or
expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (A) the amount of interest that would have accrued
on the principal amount of such Eurodollar Loan if such event had not occurred
at the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from
the date of such event to the last day of the then current Interest Period
therefor (or in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Eurodollar Loan) over
(B) the amount of interest that would accrue on the principal amount of such
Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the
date such Eurodollar Loan was prepaid or converted or the date on which the
Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this Section 2.18
submitted to the Borrower or by any Lender (with a copy to the Administrative
Agent) shall be conclusive, absent manifest error.
SECTION 2.19. TAXES.
(a) Any and all payments by or on account of any
obligation of the Borrower and the Co-Borrower hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower or the Co-Borrower shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, any Lender or the Issuing Bank (as the
case may be) shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower or the Co-Borrower, as the case
may be, shall make such deductions and (iii) the Borrower or the Co-Borrower, as
the case may be, shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower and the Co-Borrower shall
pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
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(c) The Borrower and the Co-Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within five (5) Business
Days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of
any obligation of the Borrower or the Co-Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower or the Co-Borrower to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the Code or any treaty to which the
United States is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each Foreign
Lender agrees that it will deliver to the Administrative Agent and the Borrower
(or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly completed
copies of (i) Internal Revenue Service Form W-8 ECI, or any successor form
thereto, certifying that the payments received from the Borrower or the
Co-Borrower hereunder are effectively connected with such Foreign Lender's
conduct of a trade or business in the United States; or (ii) Internal Revenue
Service Form W-8 BEN, or any successor form thereto, certifying that such
Foreign Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments
of interest; or (iii) Internal Revenue Service Form W-8 BEN, or any successor
form prescribed by the Internal Revenue Service, together with a certificate (A)
establishing that the payment to the foreign lender qualifies as "portfolio
interest" exempt from U.S. withholding tax under Code section 871(h) or 881(c),
and (B) stating that (1) the Foreign Lender is not a bank for purposes of Code
section 881(c)(3)(A), or the obligation of the Borrower and the Co-Borrower
hereunder is not, with respect to such Foreign Lender, a loan agreement entered
into in the ordinary course of its trade or business, within the meaning of that
section; (2) the Foreign Lender is not a 10% shareholder of the Borrower or the
Co-Borrower within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and
(3) the Foreign Lender is not a controlled foreign corporation that is related
to the Borrower or the Co-Borrower within the meaning of Code section
881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be
applicable to the Foreign Lender, including
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Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to the Borrower
and the Administrative Agent such forms on or before the date that it becomes a
party to this Agreement (or in the case of a Participant, on or before the date
such Participant purchases the related participation). In addition, each such
Foreign Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Foreign Lender. Each such
Foreign Lender shall promptly notify the Borrower and the Administrative Agent
at any time that it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the Internal Revenue Service for such purpose).
SECTION 2.20. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) The Borrower and the Co-Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.17, 2.18 or 2.19, or otherwise) prior to 12:00 noon, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except payments
to be made directly to the Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.17, 2.18 and
2.19 and 10.3 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC
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Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and participations in LC Disbursements and
Swingline Loans; provided, that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower or the
Co-Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements or Swingline Loans to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower and the Co-Borrower each
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower or the Co-Borrower
rights of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of the Borrower or the Co-Borrower in
the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower or the Co-Borrower, as the case may be, will not
make such payment, the Administrative Agent may assume that the Borrower or the
Co-Borrower, as the case may be, has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In
such event, if the Borrower or the Co-Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required
to be made by it pursuant to Section 2.5(b), 2.20(c) or (d) or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.21. MITIGATION OF OBLIGATIONS. (a) If any
Lender requests compensation under Section 2.17, or if the Borrower or the
Co-Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.19,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender,
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such designation or assignment (i) would eliminate or reduce amounts payable
under Section 2.17 or Section 2.19, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower or the Co-Borrower
each hereby agrees to pay all costs and expenses incurred by any Lender in
connection with such designation or assignment.
(b) If any Lender requests compensation under Section
2.17, or if the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority of the account of any Lender pursuant to Section
2.19, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions set forth in
Section 10.4(b) all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender); provided, that (i) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(in the case of such outstanding principal and accrued interest) and from the
Borrower (in the case of all other amounts) and (iii) in the case of a claim for
compensation under Section 2.17 or payments required to be made pursuant to
Section 2.19, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
(c) The Borrower shall not be required to compensate a
Lender or the Issuing Bank under Section 2.17, 2.18 or 2.19 for any taxes,
increased costs or reductions incurred more than six (6) months prior to the
date that such Lender or the Issuing Bank notifies the Borrower of such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further, that if any Change
in Law giving rise to such increased costs or reductions is retroactive, then
such six-month period shall be extended to include the period of such
retroactive effect.
SECTION 2.22. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section 2.22(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided, that (i) each Letter of Credit shall expire on the earlier of (A) the
date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $250,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate LC Exposure, plus
the aggregate outstanding
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Revolving Loans of all Lenders, would exceed the Aggregate Revolving
Commitments. Upon the issuance of each Letter of Credit each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Bank without recourse a participation in such Letter of Credit equal
to such Lender's Pro Rata Share of the aggregate amount available to be drawn
under such Letter of Credit. Each issuance of a Letter of Credit shall be deemed
to utilize the Revolving Commitment of each Lender by an amount equal to the
amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be),
the expiration date of such Letter of Credit, the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount
of such Letter of Credit) will be subject to the further conditions that such
Letter of Credit shall be in such form and contain such terms as the Issuing
Bank shall approve and that the Borrower shall have executed and delivered any
additional applications, agreements and instruments relating to such Letter of
Credit as the Issuing Bank shall reasonably require; provided, that in the event
of any conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of
any Letter of Credit, the Issuing Bank will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received
such notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit (1) directing
the Issuing Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in Section 2.22(a)
or that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing
Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents
purporting to represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the Borrower and
the Administrative Agent of such demand for payment and whether the Issuing Bank
has made or will make a LC Disbursement thereunder; provided, that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified
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the Issuing Bank and the Administrative Agent prior to 11:00 a.m. on the
Business Day immediately prior to the date on which such drawing is honored that
the Borrower intends to reimburse the Issuing Bank for the amount of such
drawing in funds other than from the proceeds of Revolving Loans, the Borrower
shall be deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the
date on which such drawing is honored in an exact amount due to the Issuing
Bank; provided, that for purposes solely of such Borrowing, the conditions
precedents set forth in Section 3.2 hereof and the minimum borrowing limitations
set forth in Section 2.3 hereof shall not be applicable. The Administrative
Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3,
and each Lender shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of the Issuing
Bank in accordance with Section 2.6. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be
(as determined in the sole discretion of the Administrative Agent), or is not,
made in accordance with the foregoing provisions, then each Lender (other than
the Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(f) To the extent that any Lender shall fail to pay any
amount required to be paid pursuant to paragraph (d) of this Section 2.22 on the
due date therefor, such Lender shall pay interest to the Issuing Bank (through
the Administrative Agent) on such amount from such due date to the date such
payment is made at a rate per annum equal to the Federal Funds Rate; provided,
that if such Lender shall fail to make such payment to the Issuing Bank within
three (3)
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Business Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Issuing Bank and the Lenders, an amount in cash equal to 105%
of the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided, that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, with demand or notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (h) or (i) of Section
8.1. Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest and
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it had not been reimbursed and to the extent
so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the
Loans has been accelerated, with the consent of the Required Lenders, be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
so applied as aforesaid) shall be returned to the Borrower with three Business
Days after all Events of Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter,
the Issuing Bank shall deliver (through the Administrative Agent) to each Lender
and the Borrower a report describing the aggregate Letters of Credit outstanding
at the end of such fiscal quarter. Upon the request of any Lender from time to
time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) The Borrower's obligation to reimburse LC
Disbursements hereunder shall be absolute, unconditional and irrevocable and
shall be performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any Letter
of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other
right which the Borrower or any Subsidiary or Affiliate of the Borrower
may have at any time against a
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beneficiary or any transferee of any Letter of Credit (or any Persons
or entities for whom any such beneficiary or transferee may be acting),
any Lender (including the Issuing Bank) or any other Person, whether in
connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document to the Issuing Bank
that does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge
of, or provide a right of setoff against, the Borrower's obligations
hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of Credit comply with
the terms thereof. The parties hereto expressly agree, that in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce
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Publication No. 500, as the same may be amended from time to time, and, to the
extent not inconsistent therewith, the governing law of this Agreement set forth
in Section 10.5.
SECTION 2.23. GUARANTY OBLIGATIONS; WAIVERS.
(a) The Borrower hereby irrevocably and unconditionally
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations owing by the Co-Borrower to the
Administrative Agent and the Lenders, or any of them, under this Agreement and
the other Loan Documents, including all renewals, extensions, modifications and
refinancings thereof, now or hereafter owing, whether for principal, interest,
premiums, fees, expenses or otherwise (collectively, the "BORROWER'S GUARANTEED
OBLIGATIONS"). Any and all payments by the Borrower hereunder shall be made free
and clear of and without deduction for any set-off, counterclaim, or withholding
so that, in each case, the Administrative Agent and the Lenders will receive,
after giving effect to any Taxes, the full amount that it would otherwise be
entitled to receive with respect to the Borrower's Guaranteed Obligations. The
Borrower acknowledges and agrees that this is a guaranty of payment when due,
and not of collection, and that this guaranty may be enforced up to the full
amount of the Borrower's Guaranteed Obligations without proceeding against the
Co-Borrower, against any security for the Borrower's Guaranteed Obligations or
under any other guaranty covering any portion of the Borrower's Guaranteed
Obligations.
(b) The Co-Borrower hereby irrevocably and
unconditionally guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations owing by the Borrower
to the Administrative Agent and the Lenders, or any of them, under this
Agreement and the other Loan Documents, including all renewals, extensions,
modifications and refinancings thereof, now or hereafter owing, whether for
principal, interest, premiums, fees, expenses or otherwise (collectively, the
"CO-BORROWER'S GUARANTEED OBLIGATIONS"). Any and all payments by the Co-Borrower
hereunder shall be made free and clear of and without deduction for any set-off,
counterclaim, or withholding so that, in each case, the Administrative Agent and
the Lenders will receive, after giving effect to any Taxes, the full amount that
it would otherwise be entitled to receive with respect to the Co-Borrower's
Guaranteed Obligations. The Co-Borrower acknowledges and agrees that this is a
guaranty of payment when due, and not of collection, and that this guaranty may
be enforced up to the full amount of the Co-Borrower's Guaranteed Obligations
without proceeding against the Borrower, against any security for the
Co-Borrower's Guaranteed Obligations or under any other guaranty covering any
portion of the Co-Borrower's Guaranteed Obligations.
(c) Guaranty Absolute. (i) The Borrower guarantees that
the Borrower's Guaranteed Obligations will be paid strictly in accordance with
the terms of the Loan Documents and (ii) the Co-Borrower guarantees that the
Co-Borrower's Guaranteed Obligations will be paid strictly in accordance with
the terms of the Loan Documents. The liability of each of the Borrower and the
Co-Borrower under their respective guaranties contained in this Agreement shall
be absolute and unconditional in accordance with their terms and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation,
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the following (whether or not the Borrower or the Co-Borrower, as the case may
be, consents thereto or has notice thereof):
(1) the genuineness, validity,
regularity, enforceability or any future amendment of, or
change in, the Obligations of the primary obligor under this
Agreement, any other Loan Document or any other agreement,
document or instrument to which such primary obligor is or may
become a party;
(2) the absence of any action to
enforce this Agreement (including this Section 2.23) or any
other Loan Document or the waiver or consent by any guaranteed
party with respect to any of the provisions thereof;
(3) the existence, value or condition
of, or failure to perfect its Lien against, any security for
the Obligations or any action, or the absence of any action,
by any Lender in respect thereof (including the release of any
such security);
(4) the insolvency of the primary
obligor; or
(5) any other action or circumstances
which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.
(d) The Borrower and the Co-Borrower each shall be
regarded, and shall be in the same position, as principal debtor with respect to
the Obligations guaranteed under this Section 2.23.
(e) Each of the Borrower and the Co-Borrower expressly
waives all rights it may now or in the future have under any statute, at common
law, at law or in equity or otherwise, to compel the Administrative Agent or any
Lender to proceed in respect of the Obligations against the other, any Guarantor
or any other Person before proceeding against, or as a condition to proceeding
against, such Borrower or Co-Borrower, as the case may be. Each of the Borrower
and the Co-Borrower further expressly waives and agrees not to assert or take
advantage of any defense based upon the failure of the Administrative Agent or
any Lender to commence an action in respect of the Obligations against the
other, any Guarantor or any other Person. Each of the Borrower and the
Co-Borrower agrees that any notice or directive given at any time to the
Administrative Agent or any Lender which is inconsistent with the waivers in the
preceding two sentences shall be null and void and may be ignored by the
Administrative Agent or such Lender, and may not be pleaded or introduced as
evidence in any litigation relating to the Obligations of such Borrower or
Co-Borrower, as the case may be, unless the Required Lenders have specifically
agreed otherwise in writing. The foregoing waivers are of the essence of the
transaction contemplated by the Loan Documents and, but for the provisions of
this Section 2.23 and such waivers, the Lenders would decline to make the Loans.
(f) The Borrower and the Co-Borrower each waives
diligence, presentment and demand (whether for non-payment or protest or of
acceptance, maturity, extension of time,
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change in nature or form of the Obligations, acceptance of security, release of
security, composition or agreement arrived at as to the amount of, or the terms
of, the Obligations, notice of adverse change in any other borrower's financial
condition or any other fact which might materially increase the risk to such
Borrower or Co-Borrower, as the case may be) with respect to any of the
Obligations or all other demands whatsoever, except to the extent specifically
set forth herein or in the other Loan Documents. To the extent permitted by
applicable law, the Borrower and the Co-Borrower each waive the benefit of all
provisions of law which are in conflict with the terms of this Agreement. The
Borrower and the Co-Borrower each represent, warrant and agree that its
Obligations are not and shall not be subject to any counterclaims, offsets or
defenses of any kind against the Lender Parties, the other borrower or any other
guarantor of the Obligations now existing or which may arise in the future.
(g) In the event the Co-Borrower shall make a payment in
respect of the Loans or any other Obligations or shall suffer any loss as a
result of any realization upon any of its assets pursuant to any Loan Document,
the Borrower shall, subject to the last sentence of this clause (e), contribute
to the Co-Borrower an amount equal to such payment made, or loss suffered, by
the Co-Borrower. Nothing in this Section 2.23 shall affect each of the
Borrower's or the Co-Borrower's several liability for the entire amount of the
Obligations. The Borrower covenants and agrees that its obligation to make a
contribution hereunder to the Co-Borrower and its right to receive any
contribution hereunder from the Co-Borrower shall be subordinate and junior in
right of payment to the Obligations.
(f) Notwithstanding anything to the contrary in this
Agreement or in any other Loan Document, and except as set forth in clause (e)
above, the Borrower and the Co-Borrower each hereby expressly and irrevocably
subordinates to payment of the Obligations any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification
or set off and any and all defenses available to a surety, guarantor or
accommodation co-obligor until the Obligations are indefeasibly paid in full in
cash and the Commitments have been terminated. The Borrower and the Co-Borrower
each acknowledges and agrees that this subordination is intended to benefit the
Lenders and shall not limit or otherwise affect such Borrower's or
Co-Borrower's, as the case may be, liability hereunder or the enforceability of
this Section 2.23, and that the Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 2.23.
SECTION 2.24. SAVINGS CLAUSE.
(a) It is the intent of the Lenders, the Administrative
Agent, the Borrower and the Co-Borrower that the Co-Borrower's Maximum
Obligations shall be in, but not in excess of:
(i) in a case or proceeding commenced by or against the
Co-Borrower under the Bankruptcy Code on or within one year from the
date on which such Obligations are incurred, the maximum amount which
would not otherwise cause such Obligations to be avoidable or
unenforceable against the Co-Borrower under (A) Section 548 of the
Bankruptcy
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Code or (B) any state fraudulent transfer or fraudulent conveyance act
or statute applied in such case or proceeding by virtue of Section 544
of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against the
Co-Borrower under the Bankruptcy Code subsequent to one year from the
date on which the Obligations of the Co-Borrower are incurred, the
maximum amount which would not otherwise cause such Obligations to be
avoidable or unenforceable against the Co-Borrower under any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(iii) in a case or proceeding commenced by or against the
Co-Borrower under any law, statute or regulation other than the
Bankruptcy Code (including any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation
or similar debtor relief laws or any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or
proceeding), the maximum amount which would not otherwise cause the
Obligations of the Co-Borrower to be avoidable or unenforceable against
the Co-Borrower under such law, statute or regulation.
The substantive laws under which the possible avoidance or unenforceability of
the Obligations shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions".
(b) To the end set forth in clause (a) above, but only to the
extent that the Obligations of the Co-Borrower would otherwise be subject to
avoidance under any Avoidance Provisions if the Co-Borrower is not deemed to
have received valuable consideration, fair value or reasonably equivalent value
for such Obligations, and if such Obligations would render the Co-Borrower
insolvent, leave the Co-Borrower with an unreasonably small capital to conduct
its business or cause the Co-Borrower to have incurred debts (or to have
intended to have incurred debts) beyond its ability to pay such debts as they
mature, in each case as of the time any of the Obligations are deemed to have
been incurred under the Avoidance Provisions, then the Maximum Obligations of
the Co-Borrower shall be reduced to that amount which, after giving effect
thereto, would not cause the Obligations, as so reduced, to be subject to
avoidance under the Avoidance Provisions. This Section 2.24(b) is intended
solely to preserve the rights of the Lenders hereunder and under the other Loan
Documents to the maximum extent that would not cause the Obligations to be
subject to avoidance under the Avoidance Provisions, and neither the Co-Borrower
nor any other Person shall have any right or claim under this Section 2.24(b) as
against any Lender that would not otherwise be available to such Person under
the Avoidance Provisions.
SECTION 2.25. INCREASE IN COMMITMENT.
(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 Aggregate
Revolving Commitment be increased up to an amount not to exceed $150,000,000
(the "REQUESTED COMMITMENT AMOUNT"). No Lender (or any successor
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thereto) shall have any obligation to increase its Revolving Commitment or its
other obligations under this Agreement and the other Loan Documents, and any
decision by a Lender to increase its Revolving Commitment shall be made in its
sole discretion independently from any other Lender.
(b) The Borrower shall have the right to obtain
commitments from existing Lenders or new banks or financial institutions in an
aggregate amount such that the existing Revolving Commitments, plus the
aggregate principal amount of the new commitments by the lenders or 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 withheld 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,
pursuant to which (x) they shall be granted all of the rights that existing
Lenders have under this Agreement and the other Loan Documents and (y) they
shall assume the same liabilities and obligations that the existing Lenders have
under this Agreement.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of
the Lenders (including the Swingline Lender) to make Loans and the obligation of
the Issuing Bank to issue any Letter of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent) required
to be reimbursed or paid by the Borrower hereunder, under any other Loan
Document and under any agreement with the Administrative Agent or SunTrust
Equitable Securities Corporation, as Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on
behalf of each party thereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;
(ii) duly executed Notes executed by the Borrower payable
to such Lender; and duly executed Notes executed by the Co-Borrower
payable to such Lender.
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(iii) a duly executed Subsidiary Guarantee Agreement and
Indemnity and Contribution Agreement;
(iv) a certificate of the Secretary or Assistant Secretary
of each Loan Party, attaching and certifying copies of its bylaws and
of the resolutions of its boards of directors, authorizing the
execution, delivery and performance of the Loan Documents to which it
is a party and certifying the name, title and true signature of each
officer of such Loan Party executing the Loan Documents to which it is
a party;
(v) certified copies of the articles of incorporation or
other charter documents of each Loan Party, together with certificates
of good standing or existence, as may be available from the Secretary
of State of the jurisdiction of incorporation of such Loan Party and
with respect to the Borrower the States of Texas, Florida, Ohio, North
Carolina and Virginia where the Borrower is required to be qualified to
do business as a foreign corporation;
(vi) a favorable written opinion of Xxxxxxxxxx Xxxxxxxx,
LLP, counsel to the Loan Parties, addressed to the Administrative Agent
and each of the Lenders, and covering such matters relating to the Loan
Parties, the Loan Documents and the transactions contemplated therein
as the Administrative Agent or the Required Lenders shall reasonably
request;
(vii) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set
forth in paragraphs (a), (b) and (c) of Section 3.2 and confirming
compliance with Section 6.2 after giving effect to the use of proceeds
of the initial Loans;
(viii) certified copies of all consents, approvals,
authorizations, registrations and filings and orders required or
advisable to be made or obtained under any Requirement of Law, or by
any Contractual Obligation of each Loan Party, in connection with the
execution, delivery, performance, validity and enforceability of the
Transaction Documents or any of the transactions contemplated thereby,
and such consents, approvals, authorizations, registrations, filings
and orders shall be in full force and effect and all applicable waiting
periods shall have expired; and
(ix) certificates of insurance issued on behalf of
insurers of the Borrower and all guarantors, describing in reasonable
detail the types and amounts of insurance (property and liability)
maintained by the Borrower and all guarantors, naming Administrative
Agent as additional insured on all liability policies; and
(x) such other documents, certificates, information or
legal opinions as the Administrative Agent or the Lenders may
reasonably request, all in form and substance satisfactory to the
Administrative Agent and the Lenders.
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SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to make a
Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment, extension or
renewal of such Letter of Credit, in each case before and after giving effect
thereto; and
(c) since the date of the financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
SECTION 3.4. TERMINATION OF EXISTING CREDIT AGREEMENT. Upon this
Agreement becoming effective, the Existing Credit Agreement and the Existing
Puerto Rico Loan Agreement shall automatically terminate (other than those
provisions that by their terms survive termination of the Existing Credit
Agreement or the Existing Puerto Rico Loan Agreement, all commitments of the
lenders thereunder to fund additional advances shall terminate automatically,
and all amounts outstanding thereunder shall be automatically paid in full by
the initial Borrowing hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Co-Borrower represents and warrants to the
Administrative Agent and each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
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jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Transaction Documents to
which it is a party are within such Loan Party's organizational powers and have
been duly authorized by all necessary organizational, and if required,
stockholder, action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Transaction Document to which any Loan
Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of the Borrower or such Loan Party (as
the case may be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower and the Co-Borrower of this Agreement,
and by each Loan Party of the other Transaction Documents to which it is a party
(a) do not require any consent or approval of, registration or filing with, or
any action by, any Governmental Authority, except those as have been obtained or
made and are in full force and effect or where the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, (b) will not violate any applicable law or regulation
or the charter, by-laws or other organizational documents of the Borrower or any
of its Subsidiaries or any judgment or order of any Governmental Authority
binding on the Borrower or any of its Subsidiaries, (c) will not violate or
result in a default under any indenture, material agreement or other material
instrument binding on the Borrower or any of its Subsidiaries or any of its
assets or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries and (d) will not result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries, except Liens (if any) created under the Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to each
Lender (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 1999, and the related consolidated statements of
income, shareholders' equity and cash flows for the fiscal year then ended
prepared by Ernst & Young and (ii) the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of the September 30, 2000, and
the related unaudited consolidated statements of income and cash flows for the
fiscal quarter and year-to-date period then ending, certified by a Responsible
Officer. Such financial statements fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as of such dates and the
consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii). Since
December 31, 1999, there have been no changes with respect to the Borrower and
its Subsidiaries which have had or could reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect.
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SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any other
Transaction Document.
(b) Except for the matters set forth on Schedule 4.5, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply in any material
respect with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability in excess of $500,000, (iii) has
received notice of any claim with respect to any Environmental Liability in
excess of $500,000 or (iv) knows of any basis for any Environmental Liability in
excess of $500,000.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and each
Subsidiary is in compliance with (a) all applicable laws, rules, regulations and
orders of any Governmental Authority, and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any
of its Subsidiaries is (a) an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary could become liable have
timely filed or caused to be filed all Federal income tax returns and all other
material tax returns that are required to be filed by them, and have paid all
taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves. The charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess of the
amount so provided are anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
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SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$1,000,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $1,000,000 the fair market value of the assets of
all such underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title to,
or valid leasehold interests in, all of its real and personal property material
to the operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks, service
marks, tradenames, copyrights and other intellectual property material to its
business, and the use thereof by the Borrower and its Subsidiaries does not
infringe on the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not have a Material Adverse
Effect.
SECTION 4.12. DISCLOSURE. Each of the Borrower and Co-Borrower has
disclosed to the Lenders all agreements, instruments, and corporate or other
restrictions to which the Borrower or any of its Subsidiaries is subject, and
all other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the reports (including without limitation all
reports that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other written information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation or syndication of this Agreement or
any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which
they were made, not misleading; provided, that with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any
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Governmental Authority. All payments due from the Borrower or any of its
Subsidiaries pursuant to the provisions of any collective bargaining agreement
have been paid or accrued as a liability on the books of the Borrower or any
such Subsidiary, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of, and
the type of, each Subsidiary and identifies each Subsidiary that is a Subsidiary
Loan Party, in each case as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of Borrower, a copy of the annual audited report for
such fiscal year for the Borrower and its Subsidiaries, containing a
consolidated and unaudited consolidating balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and the related consolidated and
unaudited consolidating statements of income, stockholders' equity and cash
flows (together with all footnotes thereto) of the Borrower and its Subsidiaries
for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and reported on by Ernst
& Young or other independent public accountants of nationally recognized
standing (without a "going concern" or like qualification, exception or
explanation and without any qualification or exception as to scope of such
audit) to the effect that such financial statements present fairly in all
material respects the financial condition and the results of operations of the
Borrower and its Subsidiaries for such fiscal year on a consolidated basis 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) as soon as available and in any event within 45 days after the
end of each fiscal quarter of each fiscal year of the Borrower (other than the
last fiscal quarter), an unaudited consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as of the end of such fiscal quarter and
the related unaudited consolidated and consolidating statements of income and
cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the
then elapsed portion of such fiscal year, 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 certified by the chief financial
officer, treasurer or controller of the Borrower as presenting fairly
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in all material respects the financial condition and results of operations of
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a Responsible
Officer, (i) certifying as to whether there exists a Default or Event of Default
on the date of such certificate, and if a Default or an Event of Default then
exists, specifying the details thereof and the action which the Borrower has
taken or proposes to take with respect thereto, (ii) setting forth in reasonable
detail calculations demonstrating compliance with Article VI and (iii) stating
whether any change in GAAP or the application thereof has occurred since the
date of the Borrower's audited financial statements referred to in Section 4.4
and, if any change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed with
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request; and
(g) as soon as available and in any event within 30 days after the
end of each fiscal year of the Borrower, a forecasted income statement, balance
sheet, and statement of cash flows for the following fiscal year.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or, to the
knowledge of the Borrower, affecting the Borrower or any Subsidiary which, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development by which
the Borrower or any of its Subsidiaries (i) fails to comply in any material
respect with any
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Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability in excess of $500,000, (iii) receives notice of any
claim with respect to any Environmental Liability in excess of $500,000, or (iv)
becomes aware of any basis for any Environmental Liability in excess of $500,000
and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $1,000,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
(f) Each notice delivered under this Section shall be accompanied
by a written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently conducted
or such other businesses that are reasonably related thereto; provided, that
nothing in this Section shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the
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extent necessary to prepare the consolidated financial statements of Borrower in
conformity with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and will
cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower; provided, however, if a Default
or an Event of Default has occurred and is continuing, no prior notice shall be
required. All reasonable expenses incurred by the Administrative Agent and, at
any time after the occurrence and during the continuance of a Default or an
Event of Default, any Lenders in connection with any such visit, inspection,
audit, examination and discussions shall be borne by the Borrower.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, 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 companies in the same or similar businesses
operating in the same or similar locations. In addition, and not in limitation
of the foregoing, the Borrower shall maintain and keep in force insurance
coverage on its inventory, as is consistent with best industry practices. The
Borrower shall at all times cause the Administrative Agent to be named as
additional insured on all of its casualty and liability policies.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower will
use the proceeds of all Loans to finance working capital needs, to refinance
existing debt, to finance Permitted Acquisitions and for other general corporate
purposes of the Borrower and its Subsidiaries. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that would
violate any rule or regulation of the Board of Governors of the Federal Reserve
System, including Regulations T, U or X. All Letters of Credit will be used for
general corporate purposes.
SECTION 5.10. ADDITIONAL SUBSIDIARIES.
(a) The Borrower may, after the Closing Date, acquire or form
additional Domestic Subsidiaries so long as the Borrower, within ten (10)
business days after any such Domestic Subsidiary is acquired or formed, (i)
notifies the Administrative Agent and the Lenders thereof and (ii) causes such
Domestic Subsidiary to become a Subsidiary Loan Party by executing agreements in
the form of Annex I to the Subsidiary Guaranty Agreement and Annex I to
Indemnity and Contribution Agreement and (iii) causes such Domestic Subsidiary
to deliver
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simultaneously therewith similar documents applicable to such Domestic
Subsidiary described in Section 3.1 as reasonably requested by the
Administrative Agent.
(b) The Borrower shall not acquire or form any additional Foreign
Subsidiaries; provided, however, that the Borrower may acquire or form
additional Subsidiaries incorporated under the laws of Canada so long as the
Borrower, within ten (10) business days after any such Foreign Subsidiary is
acquired or formed, (i) notifies the Administrative Agent and the Lenders
thereof, (ii) delivers stock certificates and related pledge agreements, in form
satisfactory to a collateral agent acceptable to the Required Lenders,
evidencing the pledge of 66% (or such greater percentage which would not result
in material adverse tax consequences) of the issued and outstanding capital
stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
and 100% of the issued and outstanding capital stock not entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of each such
Subsidiary directly owned by the Borrower or any Domestic Subsidiary to secure
the Obligations, (iii) causes such Subsidiary to deliver simultaneously
therewith similar documents applicable to such Foreign Subsidiary described in
Section 3.1 as reasonably requested by the Administrative Agent, and (iv) the
Administrative Agent enters into an intercreditor agreement, in form and
substance satisfactory to the Required Lenders, with all other creditors of the
Borrower having a similar covenant with the Borrower.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 6.1. TOTAL DEBT TO EBITDA RATIO. The Borrower and its
Subsidiaries shall maintain, as of the last day of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending March 31, 2001, a Total Debt
to EBITDA Ratio of not greater than 3.00:1.00.
SECTION 6.2. TOTAL ADJUSTED DEBT TO TOTAL ADJUSTED CAPITAL RATIO. The
Borrower and its Subsidiaries shall maintain, as of the last day of each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending March 31,
2001, a Total Adjusted Debt to Total Adjusted Capital Ratio of not greater than
0.60:1.00.
SECTION 6.3. FIXED CHARGE COVERAGE RATIO. The Borrower and its
Subsidiaries shall maintain, as of the last day of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending March 31, 2001, a Fixed
Charge Coverage Ratio of not less than 2:00 to 1:00.
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SECTION 6.4. MINIMUM CONSOLIDATED NET WORTH. The Borrower and its
Subsidiaries shall maintain a Consolidated Net Worth of an amount equal to the
sum of (i) $187,675,200.00, plus (ii) 50% of cumulative positive Consolidated
Net Income accrued during each fiscal quarter ending thereafter, since the end
of such fiscal quarter of the Borrower, commencing with the fiscal quarter
ending March 31, 2001, plus (iii) 100% of the net proceeds from any public or
private offering of common stock of the Borrower after the Closing Date,
calculated quarterly on the last day of each fiscal quarter; provided, that if
Consolidated Net Income is negative in any fiscal quarter the amount added for
such fiscal quarter shall be zero and such negative Consolidated Net Income
shall not reduce the amount of Consolidated Net Income added from any previous
fiscal quarter. Promptly upon the consummation of any offering of common stock
of the Borrower, the Borrower shall notify the Administrative Agent in writing
of the amount of the proceeds thereof.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 7.1. INDEBTEDNESS. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior
to giving effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred after
the Closing Date to finance the acquisition, construction or improvement of any
fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof; provided,
that such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvements or
extensions, renewals, and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof; provided further, that the aggregate principal
amount of such Indebtedness does not exceed $5,000,000 at any time outstanding;
(d) Indebtedness of the Borrower owing to any Loan Party and of
any Loan Party owing to the Borrower or any other Loan Party;
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(e) Guarantees by the Borrower of Indebtedness of any Loan Party
and by any Loan Party of Indebtedness of the Borrower or any other Loan Party;
(f) Indebtedness or contingent liability under the Synthetic Lease
Documents provided that the aggregate outstanding principal amount of all such
Indebtedness does not exceed $25,000,000 at any one time;
(g) Guarantees by the Borrower of Indebtedness of certain
franchise operators of the Borrower, provided such guarantees are given by the
Borrower in connection with (1) loans made pursuant to the terms of the Loan
Facility Agreement, (2) loans made pursuant to the SouthTrust Loan Facility
Agreement in an aggregate principal amount not to exceed $5,000,000 and (3)
loans made by SunTrust Bank to finance the purchase of equity interests in
certain franchises of the Borrower in an aggregate principal amount not to
exceed $5,000,000;
(h) endorsed negotiable instruments for collection in the ordinary
course of business;
(i) Guarantees by Borrower of Indebtedness of Foreign
Subsidiaries, provided that the amount of such Guaranteed Indebtedness, together
with the principal amount any loans to Foreign Subsidiaries permitted to be made
under clause (l) below, does not exceed $10,000,000 at any time;
(j) Loans by Borrower to its Foreign Subsidiaries, provided that
the amount of such loans, together with the amount of Guaranteed Indebtedness
permitted to be incurred under clause (k) above, does not exceed $10,000,000 at
any time; and
(k) other unsecured Indebtedness in an aggregate principal amount
not to exceed $10,000,000 at any time outstanding.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired (other
than any shares of stock of the Borrower that are repurchased by the Borrower
and retired or held by the Borrower), except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition,
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improvement or completion of the construction thereof; (iii) such Lien does not
extend to any other asset; and (iv) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets together with all interest, fees and costs incurred in connection
therewith;
(d) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of
any Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or the date of
such acquisition; and
(e) extensions, renewals, or replacements of any Lien referred to
in paragraphs (a) through (d) of this Section; provided, that the principal
amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby;
(f) Liens granted under the Synthetic Lease Documents in the real
or personal property financed thereunder and in certain related rights of the
Borrower to secure the Borrower's indebtedness and liabilities under the
Synthetic Lease Documents to the extent permitted under Section 7.1;
(g) Liens securing the Obligations; and
(h) Liens on shares of stock of any Foreign Subsidiary to the
extent that the Obligations are secured pari passu with any other Indebtedness
or obligations secured thereby.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all or substantially
all of its assets (in each case, whether now owned or hereafter acquired) or all
or substantially all of the stock of any of its Subsidiaries (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (i) the
Borrower or any Subsidiary may merge with a Person if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the surviving
Person, (ii) any Subsidiary may merge into another Subsidiary or the Borrower;
provided, however, that if the Borrower is a party to such merger, the Borrower
shall be the surviving Person, provided, further, that if any Subsidiary to such
merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the
surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to the Borrower or to a
Subsidiary Loan Party, (iv) the Co-Borrower may liquidate or dissolve into the
Borrower if the Borrower determines in good
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faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders, (v) any other
Subsidiary may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower,
is not materially disadvantageous to the Lenders, and such Subsidiary dissolves
into another Subsidiary Loan Party or the Borrower; provided, that any such
merger involving a Person that is not a wholly-owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
SECTION 7.4. INVESTMENTS, LOANS, ETC. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person (all of the foregoing being collectively called "INVESTMENTS"), or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person that constitute a business unit, or create or
form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Permitted Acquisitions;
(d) Investments made by the Borrower in or to any other Loan Party
and by any other Loan Party to the Borrower or in or to another Loan Party;
(e) loans or advances to employees, officers, stockholders or
directors of the Borrower or any Subsidiary in the ordinary course of business;
provided, however, that the aggregate amount of all such loans and advances does
not exceed $350,000 at any time;
(f) loans to franchise operators and owners of franchises acquired
or funded pursuant to the Loan Facility Agreement;
(g) acquire and own stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to any
Subsidiary Loan Party or any of their Subsidiaries;
(h) loans to Foreign Subsidiaries to the extent permitted under
Section 7.1;
(i) loans to franchise operators to extent permitted under Section
7.1; and
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(j) other Investments not to exceed $500,000 at any time;
SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit its Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Borrower
or any options, warrants, or other rights to purchase such common stock or such
subordinated Indebtedness, whether now or hereafter outstanding (each, a
"RESTRICTED PAYMENT"), except for (i) dividends payable by the Borrower solely
in shares of any class of its common stock, (ii) Restricted Payments made by any
Subsidiary to the Borrower or to another Subsidiary Loan Party and (iii) so long
as no Default or Event of Default has occurred and is continuing at the time
such dividend is paid or redemption or stock repurchase is made, dividends,
distributions, redemptions and stock repurchases paid in cash which do not
exceed fifty percent (50%) of Consolidated Net Income of Borrower (if greater
that $0) for the immediately preceding Fiscal Year; provided, that if the
aggregate amount of all such dividends and distributions paid in cash in any
Fiscal Year are less than the amount permitted by clause (iii) above, the excess
permitted amount for such year may be carried forward once to the next
succeeding Fiscal Year.
SECTION 7.6. SALE OF ASSETS. The Borrower will not, and will not permit
any of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's common stock to any Person other than the Borrower or a
Subsidiary Loan Party (or to qualify directors if required by applicable law),
except (a) the sale or other disposition for fair market value of obsolete or
worn out property or other property not necessary for operations disposed of in
the ordinary course of business; (b) the sale of inventory and Permitted
Investments in the ordinary course of business, (c) sales and dispositions
permitted under Section 7.3(a) and (d) other sales of assets not to exceed
$5,000,000 in book value in the aggregate.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its wholly-owned Subsidiaries not
involving any other Affiliates, (c) any Restricted Payment permitted by Section
7.5 and (d) transactions permitted under Section 7.4(e).
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other
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distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement, any other Transaction Document or the SouthTrust Loan Facility
Agreement, (ii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is sold and such sale is permitted hereunder, (iii) clause (a)
shall not apply to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions and
conditions apply only to the property or assets securing such Indebtedness, and
(iv) clause (a) shall not apply to customary provisions in leases restricting
the assignment thereof.
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrower will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred; provided, however, the Borrower may engage in such sale and
leaseback transactions so long as the aggregate fair market value of all assets
sold and leased back does not exceed $30,000,000 during the term of this
Agreement.
SECTION 7.10. AMENDMENT TO MATERIAL DOCUMENTS. The Borrower will not,
and will not permit any Subsidiary to, amend, modify or waive any of its rights
in a manner materially adverse to the Lenders under its certificate of
incorporation, bylaws or other organizational documents.
SECTION 7.11. ACCOUNTING CHANGES. The Borrower will not, and will not
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Borrower or of any Subsidiary, except to change the fiscal year of a
Subsidiary to conform its fiscal year to that of the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events (each an
"Event of Default") shall occur:
(a) the Borrower or the Co-Borrower shall fail to pay any
principal of any Loan or of any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment or otherwise; or
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(b) the Borrower or the Co-Borrower shall fail to pay any interest
on any Loan or any fee or any other amount (other than an amount payable under
clause (a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, or 5.3 (solely with respect to the
Borrower's existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those referred to in
clauses (a), (b) and (d) above), and such failure shall remain unremedied for 30
days after the earlier of (i) any officer of the Borrower becomes aware of such
failure, or (ii) notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(f) any event of default (after giving effect to any grace period)
shall have occurred and be continuing under the Loan Facility Documents or the
SouthTrust Loan Facility Agreement, or all or any part of the obligations due
and owing under the Loan Facility Agreement or the obligations due and owing
under the SouthTrust Loan Facility Agreement are accelerated, is declared to be
due and payable is required to be prepaid or redeemed, in each case prior to the
stated maturity thereof;
(g) the Borrower or any Subsidiary (whether as primary obligor or
as guarantor or other surety) shall fail to pay any principal of or premium or
interest on any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
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(h) the Borrower or any Subsidiary shall (i) commence a voluntary
case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or any substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency
or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(j) the Borrower or any Subsidiary shall become unable to pay,
shall admit in writing its inability to pay, or shall fail to pay, its debts as
they become due; or
(k) an ERISA Event shall have occurred that when taken together
with other ERISA Events that have occurred, could reasonably be expected to
result in liability to the Borrower and the Subsidiaries in an aggregate amount
exceeding $1,000,000 or otherwise having a Material Adverse Effect; or
(l) any judgment or order for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(m) any non-monetary judgment or order shall be rendered against
the Borrower or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect, and there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(n) a Change in Control shall occur or exist; or
(o) any provision of any Subsidiary Guarantee Agreement shall for
any reason cease to be valid and binding on, or enforceable against, any
Subsidiary Loan Party, or any
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Subsidiary Loan Party shall so state in writing, or any Subsidiary Loan Party
shall seek to terminate its Subsidiary Guarantee Agreement;
(p) any "Event of Default" occurs under any other Loan Document;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
(iii) exercise all remedies contained in any other Loan Document; and that, if
an Event of Default specified in either clause (h) or (i) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent and the Related Parties of the Administrative Agent and any such
sub-agent and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Bank with
respect thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
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Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any
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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 it shall have received instructions from
such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Lenders where required by the
terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing believed by it to be genuine and to have been signed, sent or
made by the proper Person. The Administrative Agent may also rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower if no Default or Event of Default
shall exist at such time. If no successor Administrative Agent shall have been
so appointed, and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or any state thereof or a bank
which maintains an office in the United States, having a combined capital and
surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, 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
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under this Agreement and the other Loan Documents. If within 45 days after
written notice is given of the retiring Administrative Agent's resignation under
this Section 9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any
of them while it was serving as the Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each Lender
hereby authorizes the Administrative Agent to execute on behalf of all Lenders
all Loan Documents other than this Agreement.
SECTION 9.9. SYNDICATION AGENT. Each Lender hereby designates First
Union National Bank as Syndication Agent and agrees that the Syndication Agent
shall have no duties or obligations under any Loan Documents to any Lender or
any Loan Party.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Xxxxx Rents, Inc.
1100 Xxxxx Building
000 Xxxx Xxxxx Xxxxx Xxxx, XX
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxxx
Telecopy Number: 000-000-0000
To the Co-Borrower: Xxxxx Rents, Inc. of Puerto Rico
c/o Xxxxx Rents, Inc.
1100 Xxxxx Building
000 Xxxx Xxxxx Xxxxx Xxxx, XX
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxxx
Telecopy Number: 000-000-0000
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To the Administrative Agent: SunTrust Bank
000 Xxxxxxxxx Xxxxxx XX /2nd
Floor/MC 1921
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy Number: (000) 000-0000
With a copy to: SunTrust Equitable Securities
Corporation
000 Xxxxxxxxx Xxxxxx, X.X./
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, X. E./Mail Code
3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
To the Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx XX /2nd
Floor/MC 1921
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy Number: (000) 000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mails or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Lender shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower and the Xx-
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Borrower to repay the Loans and all other Obligations hereunder shall not be
affected in any way or to any extent by any failure of the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in any such telephonic or
facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower, the Co-Borrower and the
Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder
or thereunder. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or the issuance of a Letter of Credit shall not be construed as a waiver
of any Default or Event of Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or
the other Loan Documents, nor consent to any departure by the Borrower or the
Co-Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Borrower and the Required Lenders or the Borrower
and the Administrative Agent with the consent of the Required Lenders and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, that no amendment or waiver
shall: (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.20 (b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender; or (vii) release all or substantially all
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collateral (if any) securing any of the Obligations or agree to subordinate any
Lien in such collateral to any other creditor of the Borrower or any Subsidiary,
without the written consent of each Lender; provided further, that no such
agreement shall amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent, the Swingline Lender or the Issuing
Bank without the prior written consent of such Person.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees, charges and disbursements of outside counsel and the allocated cost of
inside counsel) incurred by the Administrative Agent, the Issuing Bank or any
Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made or any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
Notwithstanding anything herein to the contrary Borrower and Co-Borrower's
obligation to reimburse any Person hereunder for fees, charges and disbursements
of counsel shall be limited to reasonable fees, charges and disbursements of
counsel actually incurred.
(b) The Borrower and the Co-Borrower shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing (each, an "INDEMNITEE") against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, which may be incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any Loan or Letter of Credit or any actual or proposed use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned by the Borrower or any Subsidiary or any Environmental
Liability related in any way to the Borrower or any Subsidiary or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that the
Borrower and the Co-Borrower shall not be obligated to indemnify any Indemnitee
for any of the foregoing arising out of such Indemnitee's
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gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
(c) The Borrower and the Co-Borrower shall pay, and hold the
Administrative Agent and 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 and any other Loan Documents, any collateral described
therein, or any payments due thereunder, and save the Administrative Agent and
each Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower or the Co-Borrower fail to pay
any amount required to be paid to the Administrative Agent, the Issuing Bank or
the Swingline Lender under clauses (a), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender's Pro Rata Share (determined
as of the time that the unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided, that the unreimbursed expense or indemnified
payment, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, neither the
Borrower or the Co-Borrower shall assert, and each the Borrower and the
Co-Borrower hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower and the Co-Borrower may not assign or transfer
any of its respective rights hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower or the
Co-Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more assignees all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including all or a portion of its Commitment and the Loans and
LC Exposure at the time owing to it and including non-pro rata assignments of
its Commitments and related Loans); provided, that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its LC Exposure or
Swingline Exposure, the Issuing Bank and the Swingline Lender) must give their
prior written consent (which consent
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shall not be unreasonably withheld or delayed), (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire amount of the assigning Lender's Commitment hereunder or an assignment
while an Event of Default has occurred and is continuing, the amount of the
Commitment of the assigning Lender subject to each such 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 $1,000,000 (unless
the Borrower and the Administrative Agent shall otherwise consent), (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations with respect to any Commitment and
the Loans related thereto under this Agreement and the other Loan Documents,
(iv) the assigning Lender and the assignee shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee payable by the assigning Lender or the assignee (as
determined between such Persons) in an amount equal to $1,000 and (v) such
assignee, if it is not a Lender, shall deliver a duly completed Administrative
Questionnaire to the Administrative Agent; provided, that any consent of the
Borrower otherwise required hereunder shall not be required if an Event of
Default has occurred and is continuing. Upon (i) the execution and delivery of
the Assignment and Acceptance, (ii) payment by such assignee to the assigning
Lender of an amount equal to the purchase price agreed between such Persons and
(iii) if such assignee is a Foreign Lender, compliance by such Foreign Lender
with Section 2.19(e), such assignee shall become a party to this Agreement and
any other Loan Documents to which such assigning Lender is a party and, to the
extent of such interest assigned by such Assignment and Acceptance, shall have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender shall be released from its obligations hereunder to a corresponding
extent (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.18, 2.19 and 2.20 and 10.3. Upon the consummation of any
such assignment hereunder, the assigning Lender, the Administrative Agent and
the Borrower shall make appropriate arrangements to have new Notes issued if so
requested by either or both the assigning Lender or the assignee. Any assignment
or other transfer by a Lender that does not fully comply with the terms of this
clause (b) shall be treated for purposes of this Agreement as a sale of a
participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of the
Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment, the Loans owing to it and its LC
Exposure); provided, 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 its obligations hereunder, and (iii)
the Borrower, the Co-Borrower, the Administrative Agent, the Swingline Lender,
the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
between such Lender and the Participant with respect to such participation shall
provide that such Lender shall retain the sole right and responsibility to
enforce this Agreement and the other Loan Documents and the right to approve any
amendment, modification or waiver of this Agreement
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and the other Loan Documents; provided, that such participation agreement may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver of this Agreement described in the
first proviso of Section 10.2(b) that affects the Participant. The Borrower and
the Co-Borrower each agree that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18 and 2.19 to the same extent as if it were a
Lender hereunder and had acquired its interest by assignment pursuant to
paragraph (b); provided, that no Participant shall be entitled to receive any
greater payment under Section 2.17 or 2.19 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant unless the sale of such participation is made with the Borrower's
prior written consent. To the extent permitted by law, the Borrower and the
Co-Borrower each agree that each Participant shall be entitled to the benefits
of Section 2.20 as though it were a Lender, provided, that such Participant
agrees to share with the Lenders the proceeds thereof in accordance with Section
2.20 as fully as if it were a Lender hereunder. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.19 unless the Borrower is notified of such participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.19(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and its Notes
(if any) to secure its obligations to a Federal Reserve Bank without complying
with this Section; provided, that no such pledge or assignment shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPV"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided, that
(i) nothing herein shall constitute a commitment by any SPV to make any Loan and
(ii) if an SPV elects not to exercise such option or otherwise fails to provide
all or any part of any Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPV shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State contrary in this Section 10.4,
any SPV may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and the
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Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. As this Section
10.4(g) applies to any particular SPV, this Section may not be amended without
the written consent of such SPV.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents 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) The Borrower and the Co-Borrower each hereby irrevocably and
unconditionally submit, for itself and its property, to the non-exclusive
jurisdiction of the United States District Court of the Northern District of
Georgia and of any state court of the State of Georgia located in Xxxxxx County
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia state court or , to the
extent permitted by applicable law, such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against the Borrower or its properties
in the courts of any jurisdiction.
(c) The Borrower and the Co-Borrower irrevocably and
unconditionally waive any objection which it may now or hereafter have to the
laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section and brought in any court referred to in paragraph (b) of
this Section. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR
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ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower or the Co-Borrower, any such
notice being expressly waived by the Borrower and the Co-Borrower to the extent
permitted by applicable law, to set off and apply against all deposits (general
or special, time or demand, provisional or final) of the Borrower and the
Co-Borrower at any time held or other obligations at any time owing by such
Lender and the Issuing Bank to or for the credit or the account of the Borrower
and the Co-Borrower against any and all Obligations held by such Lender or the
Issuing Bank, as the case may be, irrespective of whether such Lender or the
Issuing Bank shall have made demand hereunder and although such Obligations may
be unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.9. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
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other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. 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 and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
and (ix) subject to provisions substantially similar to this Section 10.11, to
any actual or prospective assignee or Participant, or (vi) with the consent of
the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such information as such Person would
accord its own confidential information.
SECTION 10.12. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated
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and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
(remainder of page left intentionally blank)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal in the case of the Borrower by their respective
authorized officers as of the day and year first above written.
XXXXX RENTS, INC.
By
------------------------------
Name:
Title:
[SEAL]
XXXXX RENTS, INC. PUERTO RICO
By
------------------------------
Name:
Title:
83
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING BANK, AS
SWINGLINE LENDER AND AS A LENDER
By
------------------------------------------
Name:
Title:
Revolving Commitment: $42,500,000.00
Pro Rata Share: 38.64%
Swingline Commitment: $8,000,000.00
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
84
Address for Notices: FIRST UNION NATIONAL BANK
One South Penn Square
Xxxxxxx Bldg. 12th Floor, PA 4643
Xxxxxxxxxxxx, XX 00000 By:
Attn: Xxxx Xxxxxxxx --------------------------------------
Telecopy: (000) 000-0000 Name:
Title:
Revolving Commitment: $20,000,000.00
Pro Rata Share: 18.18%
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
85
Address for Notices: SOUTHTRUST BANK
000 Xxxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 By:
Attn: Xxxxxx Xxxxxxxx --------------------------------------
Telecopy: (000) 000-0000 Name:
Title:
Revolving Commitment: $17,500,000.00
Pro Rata Share: 15.91%
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
86
Address for Notices: REGIONS BANK
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxx By:
Telecopy: (000) 000-0000 --------------------------------------
Name:
Title:
Revolving Commitment: $15,000,000.00
Pro Rata Share: 13.64%
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
87
Address for Notices: BRANCH BANKING & TRUST CO.
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000 By
Attn: Xxxx XxXxxxxxx ---------------------------------------
(Telecopy): 000-000-0000 Name:
Title:
Revolving Commitment: $10,000,000.00
Pro Rata Share: 9.09%
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
88
Address for Notices: ISRAEL DISCOUNT BANK
0000 X.X. 000 Xx., Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx By:
Telecopy: (000) 000-0000 --------------------------------------
Name:
Title:
Revolving Commitment: $5,000,000.00
Pro Rata Share: 4.55%
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
89
SCHEDULE 1.1
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
THREE-YEAR REVOLVING CREDIT FACILITY
---------------------------------------------------------------------------------------------
(Basis Points Per Annum) Total Debt to EBITDA Ratio
---------------------------------------------------------------------------------------------
Xxxxx X Xxxxx XX Xxxxx XXX Xxxxx XX
------- -------- --------- --------
FACILITY PRICING (greater than 1.50 & (greater than 2.00 &
or equal to) or equal to)
(less than) 1.50 (less than) 2.00 (less than) 2.50 (less than) 2.50
APPLICABLE MARGIN 87.5 100.0 125.0 150.0
APPLICABLE PERCENTAGE 15.0 20.0 25.0 30.0
90
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
91
SCHEDULE 4.14
SUBSIDIARIES
92
SCHEDULE 7.1
OUTSTANDING INDEBTEDNESS
93
SCHEDULE 7.2
EXISTING LIENS
94
SCHEDULE 7.4
EXISTING INVESTMENTS
95
EXHIBIT A
FORM OF
REVOLVING CREDIT NOTE
[$______] Atlanta, Georgia
March __, 2001
FOR VALUE RECEIVED, the undersigned, [Xxxxx Rents, Inc.][Xxxxx Rents,
Inc. Puerto Rico] (the ["BORROWER"]["CO-BORROWER"]) hereby promises to pay to
[name of Lender] (the "LENDER") or its registered assigns, at the office of
SunTrust Bank ("SUNTRUST") at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000, on the Revolving Commitment Termination Date (as defined in the Revolving
Credit Agreement dated as of March __, 2001 (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among the [Borrower][Co-Borrower], [Xxxxx Rents, Inc.][Xxxxx Rents, Inc. Puerto
Rico], the lenders from time to time party thereto, SunTrust, as administrative
agent for the lenders, and First Union National Bank, as Syndication Agent, the
lesser of the principal sum of [amount of such Lender's Revolving Commitment]
and the aggregate unpaid principal amount of all Revolving Loans made by the
Lender to the [Borrower][Co-Borrower] pursuant to the Credit Agreement, in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date hereof on the principal amount thereof from time
to time outstanding, in like funds, at said office, at the rate or rates per
annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the [Borrower][Co-Borrower] further promises to pay all
costs of collection, including the reasonable attorneys' fees of the Lender.
The [Borrower][Co-Borrower] promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the [Borrower][Co-Borrower] to make
the payments of principal and interest in accordance with the terms of this
Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified.
96
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
[XXXXX RENTS, INC.][XXXXX
RENTS, INC. PUERTO RICO]
By:
--------------------------------------
Name:
Title:
[SEAL]
A-2
97
LOANS AND PAYMENTS
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
---- ------------ ----------- ---------------- --------------
98
EXHIBIT B
SWINGLINE NOTE
$8,000,000 Atlanta, Georgia
[Date]
FOR VALUE RECEIVED, the undersigned, Xxxxx Rents, Inc., a Georgia
corporation (the "BORROWER"), hereby promises to pay to SunTrust Bank (the
"SWINGLINE LENDER") or its registered assigns, at the office of SunTrust Bank
("SUNTRUST") at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, on the
Swingline Termination Date (as defined in the Revolving Credit Agreement dated
as of March __, 2001 (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, Xxxxx
Rents, Inc. Puerto Rico, the lenders from time to time party thereto, SunTrust,
as administrative agent for the lenders and First Union National Bank, as
Syndication Agent, the lesser of the principal sum of EIGHT MILLION AND NO/100
DOLLARS ($8,000,000.00) and the aggregate unpaid principal amount of all
Swingline Loans made by the Swingline Lender to the Borrower pursuant to the
Credit Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs
of collection, including the reasonable attorneys' fees of the Swingline Lender.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to
the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified.
99
THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF GEORGIA, AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
XXXXX RENTS, INC.
By:
--------------------------------------
Name:
Title:
[SEAL]
D-2
100
LOANS AND PAYMENTS
UNPAID PRINCIPAL Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
---- ------------ ----------- ---------------- --------------
D-2
101
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
[DATE TO BE SUPPLIED]
REFERENCE IS MADE TO THE REVOLVING CREDIT AGREEMENT DATED AS OF MARCH
__, 2001 (AS AMENDED AND IN EFFECT ON THE DATE HEREOF, THE "CREDIT AGREEMENT"),
AMONG XXXXX RENTS, INC., A GEORGIA CORPORATION, XXXXX RENTS, INC. PUERTO RICO, A
PUERTO RICO CORPORATION, THE LENDERS FROM TIME TO TIME PARTY THERETO, SUNTRUST
BANK, AS ADMINISTRATIVE AGENT FOR THE LENDERS, AND FIRST UNION NATIONAL BANK, AS
SYNDICATION AGENT. TERMS DEFINED IN THE CREDIT AGREEMENT ARE USED HEREIN WITH
THE SAME MEANINGS.
The Assignor hereby sells and assigns, without recourse, to the
Assignee designated below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in Revolving Commitment of the
Assignor on the Assignment Date and Revolving Loans owing to the Assignor which
are outstanding on the Assignment Date, together with the participations in the
LC Exposure and the Swingline Exposure of the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 10.4 of the Credit
Agreement, duly completed and executed by the Assignee, and (ii) if the Assignee
is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Georgia.
Date of Assignment:
E-1
102
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("Assignment Date"):
E-2
103
Percentage Assigned of
Revolving Commitment (set
forth, to at
least 8 decimals, as a
percentage of the aggregate
Revolving Commitments of
all Lenders thereunder)
Principal Amount
Facility Assigned
-------- ----------------
Revolving Loans: $ %
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By:
--------------------------------------
Name:
Title:
[Name of Assignee], as Assignee
By:
--------------------------------------
Name:
Title:
The undersigned hereby consents to the within assignment:
Xxxxx Rents, Inc. SunTrust Bank, as
Administrative Agent:
By: By:
---------------------------- --------------------------------------
Name: Name:
Title: Title:
X-0
000
Xxxxx Rents, Inc. Puerto Rico SunTrust Bank, as
Issuing Bank:
By: By:
---------------------------- --------------------------------------
Name: Name:
Title: Title:
X-0
000
XXXXXXX X
FORM OF
SUBSIDIARY GUARANTEE AGREEMENT
This Subsidiary Guarantee Agreement (this "Agreement"), dated as of
March __, 2001, among each of the Subsidiaries listed on Schedule I hereto (each
such subsidiary individually, a "Guarantor" and collectively, the "Guarantors")
of XXXXX RENTS, INC., a Georgia corporation (the "Borrower") and SUNTRUST BANK,
a Georgia banking corporation as administrative agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to below).
Reference is made to the Revolving Credit Agreement dated as of March
__, 2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, Xxxxx Rents, Inc. Puerto Rico ("the
Co-Borrower"), the lenders from time to time party thereto (the "Lenders"),
SunTrust Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), swingline lender and issuing bank (in such capacity,
the "Issuing Bank"), and First Union National Bank, as Syndication Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower and Co-Borrower,
and the Issuing Bank has agreed to issue Letters of Credit for the account of
the Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. Each of the Guarantors is a direct or
indirect wholly-owned Subsidiary of the Borrower and acknowledges that it will
derive substantial benefit from the making of the Loans by the Lenders, and the
issuance of the Letters of Credit by the Issuing Bank. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the Guarantors
of a Subsidiary Guarantee Agreement in the form hereof. As consideration
therefor and in order to induce the Lenders to make Loans and the Issuing Bank
to issue Letters of Credit, the Guarantors are willing to execute this
Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (ii) each payment required to be made by the
Borrower under the
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Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the due and punctual payment and performance
of all obligations of the Borrower, monetary or otherwise, under each Hedging
Agreement entered into with a counterparty that was a Lender or an Affiliate of
a Lender at the time such Hedging Agreement was entered into (all the monetary
and other obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Obligations"). Each Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower or the Co-Borrower of any of the Obligations, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each Guarantor hereunder shall not be affected by (a) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
or exercise any right or remedy against the Borrower, Co-Borrower or any other
Guarantor under the provisions of the Credit Agreement, any other Loan Document
or otherwise, (b) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document, any Guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement, or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.
SECTION 3. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any Lender to any of the security held for payment of the Obligations or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any Lender in favor of the Borrower, Co-Borrower or any other person.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any
F-2
107
of the Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or modification of any provision of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or omission that may or might in any manner or
to the extent vary the risk of any Guarantor or that would otherwise operate as
a discharge of each Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations).
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the Co-Borrower or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower or the Co-Borrower, other than the final and
indefeasible payment in full in cash of the Obligations. The Administrative
Agent and the Lenders may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with the Borrower,
Co-Borrower or any other guarantor, without affecting or impairing in any way
the liability of any Guarantor hereunder except to the extent the Obligations
have been fully, finally and indefeasibly paid in cash. Pursuant to applicable
law, each Guarantor waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the Borrower, Co-Borrower or any other Guarantor or
guarantor, as the case may be, or any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower, Co-Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent for the benefit of the Lenders in cash the amount of such unpaid
Obligations. Upon payment by any Guarantor of any sums to the Administrative
Agent, all rights of such Guarantor against the Borrower or Co-Borrower arising
as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right
of payment to the prior indefeasible payment in full in cash of all the
Obligations. In addition, any indebtedness of the Borrower or Co-Borrower now or
hereafter held by any Guarantor is hereby subordinated in right of payment to
the prior payment in full in cash of the Obligations. If any amount shall
erroneously be paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness of the
F-3
108
Borrower or Co-Borrower, such amount shall be held in trust for the benefit of
the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
SECTION 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's and the Co-Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. Representations and Warranties. Each Guarantor represents
and warrants as to itself that all representations and warranties relating to it
(as a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct.
SECTION 9. Termination. The guarantees made hereunder (a) shall
terminate when all the Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement, the LC
Exposure has been reduced to zero and the Issuing Bank has no further obligation
to issue Letters of Credit under the Credit Agreement and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Lender or any Guarantor upon the bankruptcy or reorganization of the
Borrower, Co-Borrower, any Guarantor or otherwise. In connection with the
foregoing, the Administrative Agent shall execute and deliver to such Guarantor
or Guarantor's designee, at such Guarantor's expense, any documents or
instruments which such Guarantor shall reasonably request from time to time to
evidence such termination and release.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of the
capital stock of a Guarantor is sold, transferred or otherwise disposed of
pursuant to a transaction permitted by the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be
F-4
109
construed as a separate agreement with respect to each Guarantor and may be
amended, modified, supplemented, waived or released with respect to any
Guarantor without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent if any in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and of the Administrative Agent
hereunder and of the Lenders under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver and consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Administrative Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 13. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
agreements representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or the other Loan Document shall be considered to
have been relied upon by the Administrative Agent and the Lenders and shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank regardless of any investigation made by any of
them or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the Commitments
have not been terminated.
F-5
110
(b) In the event one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 11), and
shall become effective as provided in Section 11. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Georgia State court or Federal
court of the United States of America sitting in Xxxxxx County, Georgia, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia State court or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any Georgia State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
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111
SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
SECTION 19. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party that was not in existence on the
date of the Credit Agreement is required to enter into this Agreement as a
Guarantor upon becoming Subsidiary Loan Party. Upon execution and delivery after
the date hereof by the Administrative Agent and such Subsidiary of an instrument
in the form of Annex 1, such Subsidiary shall become a Guarantor hereunder with
the same force and effect as if originally named as a Guarantor herein. The
execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain
in full force and effect notwithstanding the addition of any new Guarantor as a
party to this Agreement.
SECTION 20. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and the Issuing Bank are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other Indebtedness at any time owing by such
Lender or the Issuing Bank to or for the credit or the account of any Guarantor
against any or all the obligations of such Guarantor now or hereafter existing
under this Agreement and the other Loan Documents held by such Lender or the
Issuing Bank, irrespective of whether or not such Person shall have made any
demand under this Agreement or any other Loan Document and although such
obligations may be unmatured. The rights of each Lender and the Issuing Bank
under this Section 20 are in addition to other rights and remedies (including
other rights of setoff) which such Lender or the Issuing Bank, as the case may
be, may have.
F-7
112
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXX INVESTMENT COMPANY, as
Guarantor
By:
--------------------------------------
Name:
Title:
SUNTRUST BANK, as
Administrative Agent
By:
--------------------------------------
Name:
Title:
F-8
113
SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
Guarantor(s) Address
------------ -------
Xxxxx Investment Company
Schedule I
114
ANNEX 1 TO THE
SUBSIDIARY GUARANTEE AGREEMENT
This SUPPLEMENT NO. [ ] (this "Supplement"), dated as of [ ], to the
Subsidiary Guarantee Agreement (the "Guarantee Agreement") dated as of March __,
2001, among each of the subsidiaries listed on Schedule I thereto (each such
Subsidiary individually, a "Guarantor" and collectively, the "Guarantors") of
XXXXX RENTS, INC., a Georgia corporation (the "Borrower") and SUNTRUST BANK, a
Georgia banking corporation, as Administrative Agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to the Revolving Credit Agreement dated as of
March __, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, Xxxxx Rents, Inc. Puerto Rico
(the "Co-Borrower"), the lenders from time to time party thereto (the
"Lenders"), SunTrust Bank, as Administrative Agent, swingline lender and issuing
bank (in such capacity, the "Issuing Bank"), and First Union National Bank, as
Syndication Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary Loan
Party that was not in existence or not a Subsidiary Loan Party on the date of
the Credit Agreement is required to enter into the Guarantee Agreement as a
Guarantor upon becoming a Subsidiary Loan Party. Section 19 of the Guarantee
Agreement provides that additional Subsidiaries of the Borrower may become
Guarantors under the Guarantee Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (the "New Guarantor") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Guarantor under the
Guarantee Agreement in order to induce the Lenders to make additional Loans and
the Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 19 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement
Annex I-1
115
applicable to it as Guarantor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct on and as of the date hereof. Each reference to a Guarantor in the
Guarantee Agreement shall be deemed to include the New Guarantor. The Guarantee
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 13 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the fees, disbursements and other charges of counsel for the
Administrative Agent.
Annex I-2
116
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[Name of New Guarantor]
By:
--------------------------------------
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
--------------------------------------
Name:
Title:
Annex I-3
117
EXHIBIT E
FORM OF
INDEMNITY, SUBROGATION and CONTRIBUTION
AGREEMENT
This Indemnity, Subrogation and Contribution Agreement (this
"Agreement"), dated as of March __, 2001, among XXXXX RENTS, INC., a Georgia
corporation (the "Borrower"), XXXXX RENTS, INC. PUERTO RICO (the "Co-Borrower"),
each Subsidiary listed on Schedule I hereto (the "Guarantors"), and SUNTRUST
BANK, a Georgia banking corporation, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Revolving Credit Agreement dated as of
March __, 2001, (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the Co-Borrower, the lenders
from time to time party thereto (the "Lenders"), SunTrust Bank, as
Administrative Agent, swingline lender and issuing bank (in such capacity, the
"Issuing Bank"), and First Union National Bank, as Syndication Agent and (b) the
Subsidiary Guarantee Agreement dated as of March __, 2001, among the Guarantors
and the Administrative Agent (as amended, supplemented or otherwise modified
from time to time, the "Guarantee Agreement"). Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrower and Co-Borrower,
and the Issuing Bank has agreed to issue Letters of Credit for the account of
the Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. The Guarantors have guaranteed such Loans
and the other Obligations (as defined in the Guarantee Agreement) of the
Borrower and Co-Borrower under the Credit Agreement pursuant to the Guarantee
Agreement. The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit are conditioned on, among other things, the execution
and delivery by the Borrower, Co-Borrower and the Guarantors of an agreement in
the form hereof.
Accordingly, the Borrower, Co-Borrower, each Guarantor and the
Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower and Co-Borrower agree that in the event a
payment shall be made by any Guarantor under the Guarantee Agreement, the
Borrower and Co-Borrower shall indemnify such Guarantor for the full amount of
such payment and such Guarantor shall be subrogated to
G-1
118
the rights of the person to whom such payment shall have been made to the extent
of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement and
such other Guarantor (the "Claiming Guarantor") shall not have been fully
indemnified by the Borrower and Co-Borrower as provided in Section 1, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal
to the amount of such payment multiplied by a fraction of which the numerator
shall be the net worth of the Contributing Guarantor on the date hereof and the
denominator shall be the aggregate net worth of all the Guarantors on the date
hereof (or, in the case of any Guarantor becoming a party hereto pursuant to
Section 12, the date of the Supplement hereto executed and delivered by such
Guarantor). Any Contributing Guarantor making any payment to a Claiming
Guarantor pursuant to this Section 2 shall be subrogated to the rights of such
Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower, Co-Borrower
or any Guarantor to make the payments required under applicable law or otherwise
shall in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not been
reduced to zero or any of the Commitments under the Credit Agreement have not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, Co-Borrower, any Guarantor or
otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Administrative Agent or any Guarantor to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by the
Administrative Agent or any Guarantor preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law.
X-0
000
Xxxx of the Administrative Agent and the Guarantors shall be deemed to have
waived any rights hereunder unless such waiver shall be in writing and signed by
such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Co-Borrower, the Guarantors and the Administrative Agent, with
the prior written consent of the Required Lenders (except as otherwise provided
in the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower, Co-Borrower nor any Guarantor may assign or
transfer any of its rights or obligations hereunder (and any such attempted
assignment or transfer shall be void) without the prior written consent of the
Required Lenders. Notwithstanding the foregoing, at the time any Guarantor is
released from its obligations under the Guarantee Agreement in accordance with
such Guarantee Agreement and the Credit Agreement, such Guarantor will cease to
have any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower, Co-Borrower and each Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
this Agreement or the other Loan Documents shall be considered to have been
relied upon by the Administrative Agent, the Lenders and each Guarantor and
shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loans or any
other fee or amount payable under the Credit Agreement or this Agreement or
under any of the other Loan Documents is outstanding and unpaid or the LC
Exposure does not equal zero and as long as the Commitments have not been
terminated.
(b) In case one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, no party hereto
shall be required to comply with such provision for so long as such provision is
held to be invalid, illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
G-3
120
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts) each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Agreement shall be effective with respect to
any Guarantor when a counterpart bearing the signature of such Guarantor shall
have been delivered to the Administrative Agent. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party of the Borrower that was not in
existence or not such a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as Guarantor upon
becoming such a Subsidiary Loan Party. Upon the execution and delivery, after
the date hereof, by the Administrative Agent and such Subsidiary of an
instrument in the form of Annex I hereto, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor hereunder. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
G-4
121
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
XXXXX RENTS, INC.
By:
--------------------------------------
Name:
Title:
XXXXX RENTS, INC. PUERTO RICO
By:
--------------------------------------
Name:
Title:
XXXXX INVESTMENT COMPANY, as a
Guarantor
By:
--------------------------------------
Name:
Title:
SUNTRUST BANK, as
Administrative Agent
By:
--------------------------------------
Name:
Title:
G-5
122
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
---- -------
Xxxxx Investment Company
Schedule I-1
123
ANNEX I TO
THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
This SUPPLEMENT NO. [ ] (this "Supplement"), dated as of [ ], to the
Indemnity, Subrogation and Contribution Agreement dated as of March __, 2001 (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Indemnity, Subrogation and Contribution Agreement") among XXXXX RENTS,
INC., a Georgia corporation (the "Borrower"), XXXXX RENTS, INC. PUERTO RICO (the
"Co-Borrower") each Subsidiary listed on Schedule I thereto (the "Guarantors")
and SUNTRUST BANK, a Georgia banking corporation, as administrative agent (the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
A. Reference is made to (a) the Revolving Credit Agreement dated as of
March __, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the Co-Borrower, the lenders
from time to time party thereto (the "Lenders"), SunTrust Bank, as the
Administrative Agent, swingline lender and issuing bank (in such capacity, the
"Issuing Bank"), and First Union National Bank, as Syndication Agent, and (b)
the Subsidiary Guarantee Agreement dated as March __, 2001, among the Guarantors
and the Administrative Agent (as amended, supplemented or otherwise modified
from time to time, the "Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrowers and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.10
of the Credit Agreement, each Subsidiary Loan Party that was not in existence or
not such a Subsidiary Loan Party on the date of the Credit Agreement is required
to enter into the Guarantee Agreement as a Guarantor upon becoming a Subsidiary
Loan Party. Section 12 of the Indemnity, Subrogation and Contribution Agreement
provides that additional Subsidiaries may become Guarantors under the Indemnity,
Subrogation and Contribution Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional Loans
and the Issuing Bank to issue additional Letters of Credit and as consideration
for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
Annex I-1
124
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as Guarantor thereunder.
Each reference to a Guarantor in the Indemnity, Subrogation and Contribution
Agreement shall be deemed to include the New Guarantor. The Indemnity,
Subrogation and Contribution Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signature of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
Annex I-2
125
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
Annex I-3
126
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[Name of New Guarantor]
By:
--------------------------------------
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
--------------------------------------
Name:
Title:
Annex I-4
127
SCHEDULE I
TO SUPPLEMENT NO. ____
TO THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
Guarantors
Name Address
---- -------
Schedule I
128
Exhibit 3.1(b)(vii)
