1
EXHIBIT 10(O)
TERM LOAN AGREEMENT
DATED AS OF NOVEMBER 21, 2000
AMONG
XXXXX RENTS, INC. PUERTO RICO
as Borrower
XXXXX RENTS, INC.
as Guarantor
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
as Administrative Agent
================================================================================
SUNTRUST EQUITABLE SECURITIES CORPORATION
as Arranger and Book Manager
2
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS; CONSTRUCTION.................................................1
Section 1.1. Definitions..........................................................1
Section 1.2. Classifications of Loans and Borrowings.............................11
Section 1.3. Accounting Terms and Determination..................................11
Section 1.4. Terms Generally.....................................................11
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS......................................11
Section 2.1. Term Loan Commitments...............................................11
Section 2.2. Funding of Borrowings...............................................12
Section 2.3. Interest Elections..................................................12
Section 2.4. Optional Reduction and Termination of Commitments...................13
Section 2.5. Repayment of Loans..................................................13
Section 2.6. Evidence of Indebtedness............................................13
Section 2.7. Optional Prepayments................................................13
Section 2.8. Interest on Loans...................................................14
Section 2.9. Fees................................................................14
Section 2.10. Computation of Interest and Fees....................................14
Section 2.11. Inability to Determine Interest Rates...............................15
Section 2.12. Illegality..........................................................15
Section 2.13. Increased Costs.....................................................15
Section 2.14. Funding Indemnity...................................................16
Section 2.15. Taxes...............................................................17
Section 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.........18
Section 2.17. Mitigation of Obligations; Replacement of Lenders...................19
ARTICLE III CONDITIONS PRECEDENT TO LOANS............................................19
Section 3.1. Conditions To Effectiveness.........................................19
Section 3.2. Delivery of Documents...............................................21
ARTICLE IV REPRESENTATIONS AND WARRANTIES...........................................21
Section 4.1. Organization and Qualification......................................21
Section 4.2. Borrower's Powers...................................................21
Section 4.3. Enforceability of Agreement and Other Loan Documents................22
Section 4.4. Consent.............................................................22
Section 4.5. Statutes, Judgments.................................................22
Section 4.6. Financial Statements................................................22
Section 4.7. Actions Pending.....................................................23
Section 4.8. Outstanding Debt....................................................23
Section 4.9. Title to Properties.................................................23
Section 4.10. Taxes...............................................................23
Section 4.11. Regulation U, Etc...................................................23
Section 4.12. No Default, Event of Default or Change of Control...................24
Section 4.13. ERISA...............................................................24
Section 4.14. Pollution and Environmental Control.................................24
Section 4.15. Possession of Franchises, Licenses, Etc.............................24
3
Section 4.16. Contingent Liabilities..............................................24
Section 4.17. Compliance with Laws................................................24
ARTICLE V AFFIRMATIVE COVENANTS....................................................25
Section 5.1. Financial Statements, Reports and Other Financial Data..............25
Section 5.2. Inspection of Property..............................................26
Section 5.3. Maintenance of Insurance............................................26
Section 5.4. Funded Debt Ratio...................................................26
Section 5.5. Leverage Ratio......................................................26
Section 5.6. Fixed Charge Coverage...............................................26
Section 5.7. Account Verification................................................27
Section 5.8. ERISA...............................................................27
Section 5.9. Payment.............................................................27
Section 5.10. Notice of Default, Event of Default or Change of Control............27
Section 5.11. Corporate Existence.................................................27
Section 5.12. Compliance with Laws, Etc...........................................27
ARTICLE VI NEGATIVE COVENANTS.......................................................28
Section 6.1. Liens...............................................................28
Section 6.2. Minimum Net Worth...................................................29
Section 6.3. Loans, Advances, Investments and Contingent Liabilities.............29
Section 6.4. Sale of Stock and Debt of Subsidiaries..............................30
Section 6.5. Merger and Sale of Assets...........................................30
Section 6.6. Additional Negative Pledges.........................................31
ARTICLE VII EVENTS OF DEFAULT........................................................31
Section 7.1. Events of Default...................................................31
ARTICLE VIII THE ADMINISTRATIVE AGENT.................................................33
Section 8.1. Appointment of Administrative Agent.................................33
Section 8.2. Nature of Duties of Administrative Agent............................34
Section 8.3. Lack of Reliance on the Administrative Agent........................34
Section 8.4. Certain Rights of the Administrative Agent..........................34
Section 8.5. Reliance by Administrative Agent....................................35
Section 8.6. The Administrative Agent in its Individual Capacity.................35
Section 8.7. Successor Administrative Agent......................................35
Section 8.8. Authorization to Execute other Loan Documents.......................36
ARTICLE IX MISCELLANEOUS............................................................36
Section 9.1. Notices.............................................................36
Section 9.2. Waiver; Amendments..................................................37
Section 9.3. Expenses; Indemnification...........................................38
Section 9.4. Successors and Assigns..............................................39
Section 9.5. Governing Law; Jurisdiction; Consent to Service of Process..........41
Section 9.6. WAIVER OF JURY TRIAL................................................41
Section 9.7. Right of Setoff.....................................................42
Section 9.8. Counterparts; Integration...........................................42
Section 9.9. Survival............................................................42
Section 9.10. Severability........................................................42
Section 9.11. Confidentiality.....................................................43
Section 9.12. Interest Rate Limitation............................................43
ii
4
Schedules
Schedule 4.16 - Contingent Liabilities
Schedule 6.1 - Existing Liens
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Assignment and Acceptance
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
iii
5
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this "Agreement") is made and
entered into as of November 21, 2000, by and among XXXXX RENTS, INC. PUERTO
RICO, a Puerto Rico corporation (the "Borrower"), XXXXX RENTS, INC., a Georgia
corporation (the "Guarantor"), the several banks and other financial
institutions from time to time party hereto (the "Lenders"), and SUNTRUST BANK,
in its capacity as Administrative Agent for the Lenders (the "Administrative
Agent").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make term
loans in an aggregate principal amount equal to $10,000,000 to the 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 severally to make the term loans to the Borrower.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the 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):
"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.
"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.
"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
6
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 one percent (1.00%) per annum.
"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 9.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit B attached hereto or any other form
approved by the Administrative Agent.
"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 Loans of the
same 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.
"BUSINESS DAY" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia or New York,
New York 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.
"CHANGE IN CONTROL" shall mean (i) any person or group of
persons (other than the Xxxxxxxxxx Family) (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC
under said Act) of 50% or more in voting power of the outstanding Voting Stock
of the Guarantor, (ii) members of the Board of Directors of the Guarantor on the
date hereof, plus any additional members of such Board whose nomination for
election or election to such Board is recommended or approved by the then
current members of such Board or by Xxxxxx Xxxxxxx Xxxxxxxxxx, Xx., shall at any
time fail to constitute a majority of such Board or (iii) the Guarantor shall
cease to own and control, beneficially and of record, 100% of the issued and
outstanding shares of capital stock of the Borrower.
"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
2
7
Lending Office)(or for purposes of Section 2.19(b), by such Lender'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.
"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 9.2.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make a Term Loan hereunder on the Closing Date, in
a principal amount not exceeding the amount set forth with respect to such
Lender on the signature pages to this Agreement. The aggregate principal amount
of all Lenders' Term Loan Commitments as of the Closing Date is $ 10,000,000.
"CONSOLIDATED NET WORTH" shall mean, as of the date of
determination, the Guarantor's total shareholders' equity, determined on a
consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATION" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"CONTROL" shall mean the power, directly or indirectly, either
to (i) vote 5% 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.
"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
2.8(b).
"DOLLAR(S)" and the sign "$" shall mean lawful money of the
United States of America.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized
under the laws of the United States or any state thereof having total assets in
excess of $1,000,000,000.00 or any commercial finance or asset-based lending
affiliate of any such commercial bank and (ii) any Lender.
"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,
3
8
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 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.
"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, 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 imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is
4
9
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 2.15(e).
"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.
"FOREIGN LENDER" shall mean any Lender that is not a United
States person under Section 7701(a)(3) of the Code.
"FUNDED DEBT" shall mean all indebtedness for money borrowed,
plus purchase money mortgages, capitalized leases, conditional sales contracts
and similar title retention debt instruments (including any current maturities
of such debt) which by its terms matures more than one year from the date of the
calculation hereof and/or which is renewable or extendable for such a period.
"FUNDED DEBT RATIO" shall mean, as to the Guarantor for any
period, a ratio of (i) its Funded Debt to (ii) the sum of its net income before
income taxes, plus interest expense for such period, determined on a
consolidated basis.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or, if no such
statements are promulgated, then such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"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)
5
10
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.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement,
dated as of the date hereof, made by the Guarantor in favor of the
Administrative Agent for the benefit of the Lenders, as amended, restated,
supplemented or otherwise modified from time to time.
"GUARANTOR" shall have the meaning in the introductory
paragraph hereof.
"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.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity agreements and other
similar agreements or arrangements designed to protect against fluctuations in
interest rates, currency values or commodity values, in each case to which any
Borrower or any Subsidiary is a party.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"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;
6
11
(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) each principal installment of the Term Loans shall
have an Interest Period ending on each installment payment date and the
remaining principal balance (if any) of the Term Loans shall have an
Interest Period determined as set forth above.
"LENDERS" shall have the meaning assigned to such term in the
opening paragraph of this Agreement.
"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,
encumbrance, lien, charge, hypothecation, assignment, deposit arrangement, title
retention, preferential property right, trust or other arrangement having the
practical effect of the foregoing (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease in
the nature thereof, including any lease or similar arrangement with a public
authority executed in connection with the issuance of industrial revenue bonds
or pollution control revenue bonds, and the filing of or agreements to give any
financing statement under the Uniform Commercial Code of any jurisdiction).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Notes (if any), the Guarantee Agreement, all Notices of Conversion/Continuation
and any and all other instruments, agreements, documents and writings executed
in connection with any of the foregoing.
"LOAN FACILITY AGREEMENT" shall mean that certain Amended and
Restated Loan Facility and Guaranty Agreement, dated as of November 3, 1999, by
and among the Guarantor, SunTrust Bank, formerly known as SunTrust Bank,
Atlanta, as Servicer and the Participants party thereto as may be amended,
modified, supplemented or restated from time to time.
7
12
"LOAN PARTIES" shall mean the Borrower and the Guarantor.
"XXXXXXXXXX FAMILY" shall mean, collectively, Xxxxxx Xxxxxxx
Xxxxxxxxxx, Xx., his spouse, his children, his grandchildren and any trust which
may be now or hereafter established for the sole benefit of any of the foregoing
persons.
"MARGIN REGULATIONS" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"MATERIALLY ADVERSE EFFECT" shall mean any materially adverse
change in (i) the business, results of operations, financial condition, assets
or prospects of the Borrower or Guarantor and its Subsidiaries, taken as a
whole, (ii) the ability of the Borrower or Guarantor to perform their respective
obligations under this Agreement, or (iii) the ability of the Guarantor to
perform its obligations under the Guaranty Agreement.
"MATURITY DATE" shall mean the earlier of (i) November 20,
2001, (ii) the date on which the Revolving Credit Agreement is refinanced, or
(iii) the date on which the principal amount of all outstanding Term Loans have
been declared or automatically have become due and payable (whether by
acceleration or otherwise).
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NOTE" shall mean a promissory note of the Borrower
substantially in the form of Exhibit A, executed by the Borrower in favor of a
Lender, as amended, restated, supplemented or otherwise modified from time to
time.
"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 2.3(b)
hereof.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to
the Administrative Agent or any 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, 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 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 arising under Hedging Agreements relating to the foregoing to the
extent permitted hereunder, and all obligations and liabilities incurred in
connection with collecting and enforcing the foregoing, together with all
renewals, extensions, modifications or refinancings thereof.
"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
8
13
made hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.
"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.
"PERSON" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"PLAN" shall mean any "employee benefit plan" (as defined in
Section 3(3)f ERISA), including, but not limited to, any defined benefit pension
plan, profit sharing plan, money purchase pension plan, savings or thrift plan,
stock bonus plan, employee stock ownership plan, Multiemployer Plan, or any
plan, fund, program, arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness, disability, or
life insurance benefits.
"PRO RATA SHARE" shall mean, for any Lender, a percentage, the
numerator of which shall be such Lender's Loans, and the denominator of which
shall be the sum of all Loans.
"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.
"REQUIREMENT OF LAW" for any person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"REPORTABLE EVENT" shall have the meaning assigned to such
term under ERISA.
9
14
"REQUIRED LENDERS" shall mean, at any time, Lenders holding
more than 50% of the aggregate outstanding Term Loans at such time.
"RESPONSIBLE OFFICER" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or the Guarantor, as
the case may be, or such other representative of the Borrower or the Guarantor,
as the case 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 or the treasurer of the Guarantor.
"REVOLVING CREDIT AGREEMENT" shall mean that certain Second
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
January 6, 1995 by and among the Guarantor, First Union National Bank (formerly
First Union National Bank of Georgia), Bank One, N.A. (formerly Bank of America
Illinois) and SunTrust (formerly Trust Company Bank), as a lender and as Agent,
as may be amended, modified, supplemented or restated from time to time.
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all classes
of voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"SYNTHETIC LEASE DOCUMENTS" shall mean, collectively, the
Master Agreement, dated as of September 20, 1996, among the Guarantor, SunTrust
Banks, Inc., as lessor (the "Lessor"), SunTrust Bank, Atlanta and SouthTrust
Bank of Georgia, N.A., as lenders, and SunTrust Bank, Atlanta, as agent, the
Lease Agreement, dated as of September 20, 1996, between the Lessor and the
Guarantor and any supplements thereto, the Construction Agency Agreement, dated
as of September 20, 1996, among the Lessor and the Guarantor, the Guaranty,
dated as of September 20, 1996, executed by the Guarantor 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 Guarantor 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.
"TERM LOAN" or "LOAN" shall have the meaning set forth in
Section 2.1.
"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.
"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.
10
15
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Type
(e.g. a "Eurodollar Loan" or "Base Rate Loan"). Borrowings also may be
classified and referred to by Type (e.g. "Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be construed
herein, all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with GAAP.
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, 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. TERM LOAN COMMITMENTS. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make a single loan
(each, a "TERM LOAN") to the Borrower on the Closing Date in a principal amount
not to exceed the Term Loan Commitment of such Lender; provided, that if for any
reason the full amount of such Lender's Term Loan Commitment is not fully drawn
on the Closing Date, the undrawn portion thereof shall automatically be
cancelled. The Term Loans may be, from time to time, Base Rate Loans or
Eurodollar Loans or a combination thereof; provided, that on the Closing Date
all Term Loans shall be Base Rate Loans. The execution and delivery of this
Agreement by the Borrower and the satisfaction of all conditions precedent
pursuant to Section 3.1 shall be deemed to constitute the Borrower's request to
borrow the Term Loans on the Closing Date.
11
16
SECTION 2.2. FUNDING OF BORROWINGS. 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. The Administrative Agent will make such Loans
available to the Borrower 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 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.
SECTION 2.3. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be a Base Rate
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.
(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 10:00 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 the Administrative Agent and each of the Lenders shall have otherwise
consented in writing. No
12
17
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 2.4. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS. The Term Loan Commitments shall terminate on the Closing Date upon
the making of the Term Loans pursuant to Section 2.1.
SECTION 2.5. REPAYMENT OF LOANS. The Borrower unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
entire unpaid principal balance of the Term Loans in full on the Maturity Date.
SECTION 2.6. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the Loan made by such Lender, 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 Term Loan Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Type thereof and the Interest Period
applicable thereto, (iii) the date of each continuation thereof pursuant to
Section 2.3, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.3, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the 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 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 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 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 at any time, the
Borrower agrees that it will execute and deliver to such Lender a Note.
SECTION 2.7. OPTIONAL PREPAYMENTS. The 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, and (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. 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
13
18
and payable on the date designated in such notice, together with accrued
interest to such date on the amount so prepaid; provided, that if a Eurodollar
Borrowing is prepaid on a date other than the last day of an Interest Period
applicable thereto, the Borrower shall also pay all amounts required pursuant to
Section 2.14. Each prepayment shall be applied ratably to the Loans.
SECTION 2.8. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate
Loan at the Base Rate in effect from time to time and on each Eurodollar Loan at
the Adjusted LIBO Rate for the applicable Interest Period in effect for such
Loan, plus, with respect to Eurodollar Loans only, the Applicable Margin in
effect from time to time.
(b) While an Event of Default exists or after
acceleration, at the option of the Required Lenders, the 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 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.
(c) 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 Maturity 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 Maturity 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.
(d) 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 2.9. 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
in writing by the Borrower and the Administrative Agent, if any.
(b) The Borrower shall pay to the Administrative Agent,
for the ratable benefit of each Lender, a closing fee equal to 0.10% per annum
multiplied by the aggregate Term Loan Commitments.
SECTION 2.10. COMPUTATION OF INTEREST AND FEES.
14
19
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 fee hereunder shall be made in good faith and, except for manifest error,
shall be final, conclusive and binding for all purposes.
SECTION 2.11. 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) 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 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 prepays such Loans in accordance with this
Agreement.
SECTION 2.12. ILLEGALITY. If any Change in Law shall make in
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 continue or convert outstanding Loans as
or into Eurodollar Loans, shall be suspended. 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 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 2.13. 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
15
20
by, any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate) ; or
(ii) impose on any Lender or the eurodollar interbank
market any other condition affecting this Agreement or any Eurodollar
Loans made by such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan, 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 for such additional costs incurred
or reduction suffered.
(b) If any Lender 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 capital
(or on the capital of such Lender's parent corporation) as a consequence of its
obligations hereunder to a level below that which such Lender or such Lender's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's policies or the policies of such Lender'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 such
Lender's parent corporation for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender's parent corporation,
as the case may be, specified in paragraph (a) or (b) of this 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 such
amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation.
SECTION 2.14. 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 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 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
16
21
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 2.14 submitted to the Borrower by any Lender (with a copy to
the Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.15. TAXES.
(a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if the
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 or any
Lender (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 shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent
and each Lender, 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, as the case may be, on or with respect to any
payment by or on account of any obligation of the 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 by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the 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.
17
22
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 Lender, 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 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 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
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 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 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 Lender, on or before
the date such Lender 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 2.16. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) The Borrower shall make each payment required to be
made by it hereunder (whether of principal, interest, fees, or of amounts
payable under Section 2.12, 2.13 or 2.14, 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 that payments pursuant to Sections 2.12, 2.13 and 2.14 and 9.3 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.
18
23
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
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 then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) 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 hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount or amounts
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender 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.
(d) If any Lender shall fail to make any payment required
to be made by it pursuant to Section 2.1 or 9.3(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 2.17. MITIGATION OF OBLIGATIONS. If any Lender
requests compensation under Section 2.13 or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.15 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, such designation or assignment (i) would eliminate or reduce amounts
payable under Section 2.13 or Section 2.15 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 hereby agrees to
pay all costs and expenses incurred by any Lender in connection with such
designation or assignment.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of
the Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 9.2).
(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-
19
24
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.
(b) Each of the following statements must be true and
correct:
(i) at the time of and immediately after giving effect to
the funding of the Term Loans, no Default or Event of Default shall
exist;
(ii) all representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all
material respects; and
(iii) since December 31, 1999, there shall have been no
change which has had or could reasonably be expected to have a
Materially Adverse Effect.
(c) 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) if requested by any Lender, duly executed Notes
payable to such Lender;
(iii) a duly executed Guarantee Agreement;
(iv) 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
each other jurisdiction where such Loan Party 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 favorable written opinion of Xxxxxxxxxxx Xxxxxx &
Xxxxxxx 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
20
25
transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a
Responsible Officer of the Borrower and Guarantor confirming compliance
with the conditions set forth in paragraph (b) of Section 3.1;
(ix) a duly executed funds disbursement letter; and
(x) 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
Loan 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.
SECTION 3.2. 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Guarantor and the Borrower represents and warrants
to the Administrative Agent and each Lender as follows:
SECTION 4.1. ORGANIZATION AND QUALIFICATION.
Each of the Borrower and the Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Puerto Rico and the State of Georgia, respectively; the Borrower
and the Guarantor have the corporate power to own their property and to carry on
their business as now being conducted; and the Borrower and the Guarantor are
duly qualified as foreign corporations to do business and are in good standing
in every jurisdiction in which the nature of the business conducted by them
makes such qualification necessary and where failure to qualify would have a
Materially Adverse Effect.
SECTION 4.2. BORROWER'S POWERS.
The execution, delivery and performance of the Loan Documents
required hereunder are within the Borrower's or the Guarantor's corporate
powers, as the case may be, have been duly authorized by all necessary
shareholder or corporate action, and do not and will not contravene or conflict
with the terms of any charter, by-law or other organizational papers of the
Borrower, the Guarantor or any of its Subsidiaries, or any indenture, agreement
or
21
26
undertaking to which the Borrower, the Guarantor or any of its Subsidiaries is a
party or by which the Borrower, the Guarantor or any of its Subsidiaries is
bound or affected.
SECTION 4.3. ENFORCEABILITY OF AGREEMENT AND OTHER LOAN
DOCUMENTS.
This Agreement is a legal, valid and binding agreement of the
Borrower and the Guarantor, enforceable against the Borrower and the Guarantor
in accordance with its terms, and each other Loan Document and any other
instrument or agreement required hereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable against the Borrower and the
Guarantor, as applicable, in accordance with their respective terms.
SECTION 4.4. CONSENT.
No consent, permission, authorization, order or license of any
governmental authority is necessary in connection with the execution, delivery,
performance or enforcement of this Agreement, the other Loan Documents or any
other instrument or agreement required hereunder, except as may have been
obtained and certified copies of which have been delivered to each Lender.
SECTION 4.5. STATUTES, JUDGMENTS.
There is no law, statute, rule or regulation, nor is there any
judgment, decree or order of any court or agency binding on the Borrower, the
Guarantor or any of its Subsidiaries, which would be contravened by the
execution, delivery or performance of this Agreement or any other Loan Document
or any other instrument or agreement required hereunder.
SECTION 4.6. FINANCIAL STATEMENTS.
The Guarantor has furnished each Lender with the following
financial statements, identified by a principal financial officer of the
Guarantor:
Audited Consolidated Financial and Operating Statements for
the Guarantor for the years ended December 31, 1999, December
31, 1998, December 31, 1997 and December 31, 1996, and audit
opinions with respect to such statements of Ernst & Young LLP;
and unaudited financial and operating statements for the
six-month period ended September 30, 2000.
The above financial statements (including any related schedules and/or
notes) are true and correct in all material respects and have been prepared in
accordance with generally accepted accounting principles consistently followed
throughout the periods involved and show all known liabilities, direct and
contingent, of the entities covered thereby required to be shown in accordance
with such principles. The balance sheets fairly present the condition of the
entities covered thereby as at the dates thereof, and the profit and loss and
surplus statements fairly present the results of the operations of the entities
covered thereby for the periods indicated. There has been no material adverse
change in the business, condition or operations (financial or otherwise) of the
Guarantor since December 31, 1999.
22
27
SECTION 4.7. ACTIONS PENDING.
There is no action, suit, investigation or proceeding pending
or, to the knowledge of the Borrower or the Guarantor, threatened against or
affecting the Borrower, the Guarantor or any of its Subsidiaries, or any
properties or rights of the Borrower, the Guarantor or any of its Subsidiaries,
before any court, arbitrator or administrative or governmental body which is
reasonably likely to result in any Materially Adverse Effect.
SECTION 4.8. OUTSTANDING DEBT.
Neither the Borrower, the Guarantor nor any of its
Subsidiaries has outstanding any indebtedness except debt permitted hereunder,
under the Revolving Credit Agreement, or under the Loan Facility Agreement.
There exists no default under the provisions of any instrument evidencing such
indebtedness or of any agreement relating thereto.
SECTION 4.9. TITLE TO PROPERTIES.
The Borrower, the Guarantor and each of its Subsidiaries have
good and marketable title to their respective real properties, subject only to
Liens permitted under Section 6.1, and good title to all of its other
respective properties and assets, including the properties and assets reflected
in the balance sheet as of December 31, 1999 hereinabove described (other than
properties and assets disposed of in the ordinary course of business), subject
to no Lien of any kind except Liens permitted under Section 6.1. The Borrower
and the Guarantor enjoy full and undisturbed possession of all leases necessary
in any material respect for the operation of their respective properties and
assets, none of which contains any unusual or burdensome provisions which might
materially affect or impair the operation of such properties and assets. All
such leases are valid and subsisting and are free from defaults by the
Borrower, the Guarantor or respective landlords and in full force and effect.
SECTION 4.10. TAXES.
Each of the Borrower and the Guarantor has, and each of the
Guarantor's Subsidiaries has filed all federal and state income tax returns
which, to the best knowledge of the officers of the Borrower and the Guarantor,
are required to be filed, and each has paid all taxes as shown on said returns
and on all assessments received by it to the extent such taxes have become due,
except to the extent expressly permitted by Section 6.1(a).
SECTION 4.11. REGULATION U, ETC.
Neither the Borrower, the Guarantor nor any of its
Subsidiaries own or have any present intention of acquiring any "margin
security" as defined in Regulation U of the Board of Governors of the Federal
Reserve System (herein called a "margin security"). None of the proceeds of any
Advance will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry a margin
security or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of said Regulation U.
23
28
SECTION 4.12. NO DEFAULT, EVENT OF DEFAULT OR CHANGE OF
CONTROL.
No Default, Event of Default, or Change of Control, has
occurred and is continuing or will occur as a result of the incurring of any
obligation under this Agreement.
SECTION 4.13. ERISA.
No fact or circumstance, including but not limited to any
Reportable Event, exists in connection with any Plan of the Borrower, the
Guarantor or its Subsidiaries which might constitute grounds for the
termination of any such Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer any such
Plan. For purposes of this representation and warranty, if the Borrower is not
the Plan administrator, it shall nonetheless be deemed to have knowledge of all
facts attributable to the Plan administrator designated pursuant to ERISA.
SECTION 4.14. POLLUTION AND ENVIRONMENTAL CONTROL.
Each of the Borrower and the Guarantor has obtained all
permits, licenses and other authorizations which are required under, and is in
material compliance with, all federal, state, and local laws and regulations
relating to pollution, reclamation, or protection of the environment, including
laws relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials or wastes into air,
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants or hazardous or toxic materials or wastes.
SECTION 4.15. POSSESSION OF FRANCHISES, LICENSES, ETC.
The Borrower and the Guarantor and its Subsidiaries possess
all franchises, certificates, licenses, permits and other authorizations from
governmental political subdivisions or regulatory authorities, and all patents,
trademarks, service marks, trade names, copyrights, licenses and other rights,
free from burdensome restrictions, that are necessary for the ownership,
maintenance and operation of any of their respective properties and assets, and
neither the Borrower, the Guarantor nor any of its Subsidiaries is in violation
in any material respect of any thereof.
SECTION 4.16. CONTINGENT LIABILITIES.
After due inquiry, there exists no material contingent
liability or obligation assertable against the Borrower, the Guarantor or its
Subsidiaries that is not identified and disclosed to the Lenders in the
consolidated financial statements delivered pursuant to Sections 4.6 or 5.1 or
in Schedule 4.16 attached hereto.
SECTION 4.17. COMPLIANCE WITH LAWS.
Each of the Borrower and the Guarantor and its Subsidiaries
is in compliance in all material respects with all applicable federal, state
and local laws, rules, regulations and orders, including, without limitation,
all federal, state and local laws, rules, regulations and
24
29
orders relating to pollution, reclamation or protection of the environment,
including laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, or hazardous or toxic materials or wastes
into air, water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants or hazardous or toxic materials or wastes, and all
federal, state and local laws, rules, regulations and orders relating to
franchising activities.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of the Guarantor and the Borrower covenants and agrees
that so long as any Lender has a Commitment hereunder or the principal of and
interest on any Loan remains unpaid:
SECTION 5.1. FINANCIAL STATEMENTS, REPORTS AND OTHER
FINANCIAL DATA.
The Guarantor will deliver to each Lender:
(a) as soon as practicable and in any event within
forty-five (45) days after the end of each calendar quarter (other
than the last calendar quarter) in each fiscal year, consolidated
statements of income, cash flow and retained earnings of the Guarantor
and its Subsidiaries for the period from the beginning of the current
fiscal year to the end of such calendar quarter, and consolidated
balance sheets of the Guarantor and its Subsidiaries as at the end of
such calendar quarter, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal year, all
in reasonable detail and certified by the Chief Financial Officer of
the Guarantor, subject to changes resulting from year-end adjustments;
(b) as soon as practicable and in any event within 90
days after the end of each fiscal year (or as soon as made available
by the Guarantor's independent public accountants if availability is
delayed beyond such 90-day period for reasons beyond the Guarantor's
control) audited consolidated statements of income, cash flow and
retained earnings of the Guarantor and its Subsidiaries for such year,
and an audited consolidated balance sheet of the Guarantor and its
Subsidiaries as at the end of such year, setting forth in each case in
comparative form corresponding figures from the preceding annual
statements, all in reasonable detail and reasonably satisfactory in
scope to Lenders, and the consolidated financial statements shall be
certified by independent public accountants of recognized standing,
selected by the Guarantor, whose report shall be in scope and
substance reasonably satisfactory to Lenders, and shall be certified
by the Chief Financial Officer of the Guarantor;
(c) along with the quarterly and annual reports required
by clauses (a) and (b) above, a certificate of the Chief Financial
Officer of the Guarantor certifying that no Event of Default exists
and that no event exists which with notice or the lapse of time or
25
30
both would become such an Event of Default, which certificate shall
also demonstrate in reasonable detail, with respect to both quarterly
reports and annual reports, the Guarantor's compliance with the
covenants set out in Sections 5.4, 5.5, 5.6, 6.2 and 6.3;
(d) promptly upon receipt thereof, copies of any
detailed reports submitted to the Guarantor by its independent public
accountants in connection with each annual audit or interim review of
the books of the Guarantor or its Subsidiaries made by such
accountants;
(e) promptly upon transmission thereof, copies of all
financial statements, proxy statements, notices and reports as the
Guarantor shall send to its shareholders and of all regular or
periodic reports which it is or may be required to file with the
Securities and Exchange Commission or any governmental department,
bureau, commission or agency succeeding to the functions of the
Securities and Exchange Commission; and
(f) with reasonable promptness, such other financial
data as any Lender, through the Administrative Agent, may reasonably
request.
SECTION 5.2. INSPECTION OF PROPERTY. The Borrower and the
Guarantor will permit any Person designated by a Lender in writing, to visit
and inspect any of the properties, corporate books and financial records of the
Borrower, the Guarantor and its Subsidiaries and to make copies thereof and
take extracts therefrom and to discuss the affairs, finances and accounts of
any such corporations with the principal officers of the Borrower, the
Guarantor or its Subsidiaries, all at such reasonable times and as often as
such Lender may reasonably request, subject in all cases to the confidentiality
requirements of Section 9.11.
SECTION 5.3. MAINTENANCE OF INSURANCE. The Borrower, the
Guarantor and each Subsidiary will maintain insurance in such amounts and
against such liabilities and hazards as customarily is maintained by other
companies operating similar businesses.
SECTION 5.4. FUNDED DEBT RATIO. The Guarantor shall maintain
and operate its business in a manner to insure that its Funded Debt Ratio,
measured as of the last day of each fiscal quarter for the four immediately
preceding quarters ending on such date, is less than 4.00:1.00.
SECTION 5.5. LEVERAGE RATIO. The Guarantor shall maintain and
operate its business in such a manner to insure that its ratio, measured as of
the last day of each fiscal quarter, of (i) Funded Debt to (ii) the sum of
Funded Debt plus the Consolidated Net Worth of the Guarantor and its
Subsidiaries, is less than 0.50:1.00.
SECTION 5.6. FIXED CHARGE COVERAGE. The Guarantor will
operate its business in such a manner to insure that the sum of its (i)
consolidated net income before income taxes, plus (ii) interest expense, plus
(iii) rental and lease expense are greater than 150% of the sum of (i) interest
expense, plus (ii) rental and lease expense, all determined on a consolidated
basis for the Guarantor and its Subsidiaries. Compliance with the
aforementioned fixed charge coverage ratio will be determined at the end of
each fiscal quarter of the Guarantor and taking into account operations during
the four consecutive fiscal quarters ending on such date. The following
mathematical formula illustrates the Guarantor's fixed charge coverage
obligation:
26
31
Pretax Net Interest Rental and Lease
Income + Expense + Expense > 1.50
------------------------------------------------- -
Interest Expense + Rental and Lease
Expense
SECTION 5.7. ACCOUNT VERIFICATION. Upon the request of any
Lender, made at reasonable intervals and on a reasonable basis, the Guarantor
and the Borrower will mail letters to selected lease customers or account
debtors requesting them to verify the status of their leases or accounts, with
responses to be returned directly to the Administrative Agent.
SECTION 5.8. ERISA. The Borrower and each Subsidiary will:
(a) At all times, make prompt payment of contributions
required to meet the minimum funding standard set forth in ERISA with
respect to its Plans;
(b) Notify Lenders and the Administrative Agent
immediately of any fact, including, but not limited to, any Reportable
Event arising in connection with any of its Plans which might
constitute grounds for termination thereof by the PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer such Plan, together with a statement, if
requested by Lenders, as to the reasons therefor and the action, if
any, which the Borrower or any of its Subsidiaries proposes to take
with respect thereto; and
(c) Furnish to Lenders or the Administrative Agent, upon
request, such additional information concerning any of its Plans as
may be reasonably requested.
SECTION 5.9. PAYMENT. The Borrower will pay all sums due
under this Agreement and the other Loan Documents according to the terms
hereof.
SECTION 5.10. NOTICE OF DEFAULT, EVENT OF DEFAULT OR CHANGE
OF CONTROL. The Guarantor will immediately give notice to the Administrative
Agent and each Lender of any Default, Event of Default or Change of Control.
SECTION 5.11. CORPORATE EXISTENCE. Except as expressly
permitted by Section 6.5, each of the Borrower and the Guarantor will maintain,
and will cause each Subsidiary to maintain, its corporate existence and good
standing in the jurisdiction of its incorporation, and each of the Borrower and
the Guarantor will qualify, and will cause each Subsidiary to qualify, and
remain qualified to do business as a foreign corporation in each jurisdiction
in which the nature of the business conducted by it or its ownership of
property makes such qualification necessary and where failure to qualify would
have a Materially Adverse Effect.
SECTION 5.12. COMPLIANCE WITH LAWS, ETC. Each of the Borrower
and the Guarantor will comply, and cause each of its Subsidiaries to comply, in
all material respects with all applicable federal, state, and local laws,
rules, regulations and orders, including, without limitation, all federal,
state and local laws, rules, regulations and orders relating to pollution,
reclamation, or protection of the environment, including laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or wastes into air, water, or
land, or otherwise relating to the manufacture, processing, distribution,
27
32
use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants or hazardous or toxic materials or wastes, and all federal, state
and local law, rules, regulations and orders relating to franchising
activities.
ARTICLE VI .
NEGATIVE COVENANTS
Each of the Guarantor and the Borrower covenants and agrees that so
long as the Loans remain outstanding or the Guarantor or the Borrower has any
obligations under the Loan Documents, unless otherwise consented to in writing
by the Required Lenders:
SECTION 6.1. LIENS. Neither the Guarantor nor the Borrower
will, nor will it permit any of its Subsidiaries to, create, assume or suffer
to exist any Lien upon any of its property or assets, whether now owned or
hereafter acquired, except:
(a) Liens for taxes not yet due or which are being actively
contested in good faith by appropriate proceedings;
(b) 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;
(c) Liens on property or assets of a Subsidiary to secure
obligations of such Subsidiary to the Guarantor or another Subsidiary;
(d) Liens on insurance policies owned by the Guarantor 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 Guarantor shall not incur
any liability to repay any such loan;
(e) Liens on real property or equipment acquired by the Guarantor
to secure (i) all or any portion of the purchase price thereof or the financing
of the purchase price thereof, provided that the aggregate principal amount of
equipment loans secured by such Liens shall be limited to $500,000 in aggregate
or (ii) the costs of improvements being constructed thereon or on real property
leased by the Guarantor for use by the Guarantor as stores or warehouses or as
a part thereof or the financing of such costs;
(f) Liens existing on the date hereof as set forth on Schedule
6.1 attached hereto and incorporated herein;
(g) easements, rights of way, restrictive covenants and
similar encumbrances on or exceptions to title to real property which
do not materially and adversely affect the value or the utility of the
real property involved; and
(h) 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
28
33
Borrower's indebtedness and liabilities under the Synthetic Lease
Documents to the extent permitted under Section 6.3(h)
(i) Liens assigned and granted by the Borrower or
Guarantor to the Administrative Agent in any existing or hereafter
created lien or security interest in favor of the Borrower or
Guarantor in any property of any franchisee or franchisees that
participate in the franchisee financing program permitted pursuant to
Section 6.3(k) hereof, solely to the extent of any indebtedness owing
by such franchisee to the Administrative Agent under such franchisee
financing program.
SECTION 6.2. MINIMUM NET WORTH. The Guarantor will not permit
its Consolidated Net Worth as of the last day of any fiscal quarter, commencing
with the fiscal quarter ending September 30, 1999, to be less than the sum of
(a) $112,000,000 plus (b) 50% of the Guarantor's consolidated net income after
taxes (but not loss) (as determined in accordance with generally accepted
accounting principles) for the period beginning July 1, 1999 and ending on the
last day of such fiscal quarter.
SECTION 6.3. LOANS, ADVANCES, INVESTMENTS AND CONTINGENT
LIABILITIES. Neither the Borrower or the Guarantor will and will permit any of
their respective Subsidiaries to make or permit to remain outstanding any loan
or advance to, or extend credit to, or guarantee, endorse or otherwise be or
become contingently liable, directly or indirectly, in connection with the
obligations, stock or dividends of, or own, purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contributions to, any Person, except that the Guarantor, the Borrower or any of
their respective Subsidiaries may:
(a) create, incur, assure or suffer to exist, debt
evidenced by the Loan Documents or the Revolving Credit Agreement;
(b) suffer to exist unsecured current liabilities (not
resulting from borrowing) incurred in the ordinary cause of business
for current purposes and not represented by a promissory note or other
evidence of indebtedness;
(c) permit to remain outstanding loans or advances to or
investments in any of its Subsidiaries existing on the date of this
Agreement;
(d) own, purchase or acquire stock, obligations or
securities of a Subsidiary or of a corporation which immediately after
such purchase or acquisition will be a Subsidiary or will be merged
with Guarantor, provided, however, written consent of the Lenders,
which any of them may withhold in their sole discretion, is required
for purchases and acquisitions with (A) a cash purchase price greater
than or equal to $10,000,000, or (B) a total purchase price (including
cash, stock of the Guarantor and any of its Subsidiaries and any other
consideration) greater than or equal to $15,000,000;
(e) acquire and own stock, obligations or securities
received in settlement of debts (created in the ordinary course of
business) owing to the Guarantor or any of its Subsidiaries;
29
34
(f) own, purchase or acquire (i) prime commercial paper
and certificates of deposit in United States commercial banks (whose
long-term debt is rated "A" or better by Xxxxx'x Investors Service or
Standard and Poor's Corporation) (issued by banks having capital
resources in excess of $50,000,000), in each case due within one year
from the date of purchase and payable in the United States in dollars,
direct obligations of the United States Government or any agency
thereof, or obligations fully guaranteed as to principal and interest
by the United States Government or any agency thereof, in each case
maturing within one year from the date of creation of such obligation
or (ii) up to an additional $500,000 of other securities or
investments at any one time;
(g) endorse negotiable instruments for collection in the
ordinary course of business;
(h) incur or guaranty indebtedness or contingent
liability under the Synthetic Lease Documents provided that the
aggregate outstanding principal amount of all such indebtedness or
liabilities does not exceed $25,000,000 at any one time; and
(i) make or permit to remain outstanding loans or
advances to officers, stockholders, employees and directors of the
Guarantor, provided that the aggregate principal amount of such loans
and advances shall not exceed $350,000 at any time outstanding for the
Guarantor and all Subsidiaries, and further provided that no
Subsidiary shall make any loan or advance to, or acquire any stock,
obligations or securities of, the Guarantor;
(j) guarantee in the ordinary course of business up to
$15,000,000 of indebtedness or obligations of any franchise operators
or owners (in addition to the guarantee of indebtedness permitted by
clause (a) above); and
(k) guarantee the indebtedness of obligations of certain
franchise operators, provided such guarantees are (A) given in
connection with (1) such franchise operators' purchase of merchandise
financed through a third-party lender or (2) loans made for other
purposes pursuant to the terms of the Loan Facility Agreement, and (B)
limited to $70,000,000 in aggregate outstanding principal amount at
any one time for all franchise operators.
SECTION 6.4. SALE OF STOCK AND DEBT OF SUBSIDIARIES. The
Guarantor will not sell or otherwise dispose of, or part with control of, any
shares of stock or debt of any of its Subsidiaries without the prior written
consent of the Required Lenders.
SECTION 6.5. MERGER AND SALE OF ASSETS. Neither the Borrower
nor the Guarantor will merge or consolidate, or permit any of their respective
Subsidiaries to merge or consolidate, with any other corporation or sell, lease
or transfer or otherwise dispose of all or a substantial part of its assets or
the assets of a Subsidiary, or assets which shall have contributed a
substantial part of consolidated net earnings for any of the three fiscal years
then most recently ended, to any Person, except that any of their respective
Subsidiaries may merge with or liquidate into the Guarantor (provided that the
Guarantor shall be the continuing or surviving corporation) or
30
35
merge with the Borrower or any one or more other Subsidiaries, provided that
immediately after giving effect to such merger or liquidation no Default or
Event of Default shall exist.
SECTION 6.6. ADDITIONAL NEGATIVE PLEDGES. Neither the
Borrower nor the Guarantor shall permit any of their respective Subsidiaries
to, create or otherwise cause or suffer to exist or become effective, directly
or indirectly, any prohibition or restriction on the creation or existence of
any Lien upon any assets of the Guarantor, the Borrower or any of their
respective Subsidiaries, other than pursuant to (a) Section 6.1, (b) the terms
of any agreement, instrument or other document pursuant to which any debt
permitted by Section 6.1(e) is incurred by the Guarantor, the Borrower or any
of its Subsidiaries, so long as such prohibition or restriction applies only to
the property or asset being financed by such debt, (c) the terms of the
Revolving Credit Agreement, the Loan Facility Agreement and the terms of the
Synthetic Lease Documents, and (d) any requirement of applicable law or any
regulatory authority having jurisdiction over the Borrower, the Guarantor or
any of its Subsidiaries.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT. If any of the following
events (each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any
Loan 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
(b) the 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 any Loan Party 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 or the Guarantor shall fail to observe
or perform any covenant or agreement contained in Sections 5.4, 5.5 or 5.6 or
Articles VI; 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 Responsible Officer becomes aware of
such failure, or (ii) notice thereof shall have been given to the Guarantor by
the Administrative; or
31
36
(f) The Borrower or the Guarantor or any of their
respective Subsidiaries makes an assignment for the benefit of creditors or
fails to pay its debts generally as they become due; or
(g) Any order, judgment or decree is entered under any
bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law (herein called the
"Bankruptcy Law") of any jurisdiction adjudicating the Borrower or the
Guarantor or any of their respective Subsidiaries bankrupt or insolvent; or
(h) The Borrower or the Guarantor or any of their
respective Subsidiaries petitions or applies to any tribunal for, or consents
to, the appointment of, or taking possession by, a trustee, receiver, custodian
or liquidator or similar official of the Borrower or the Guarantor or any of
their respective Subsidiaries, or of any substantial part of the assets of the
Borrower or the Guarantor or any of their respective Subsidiaries, or commences
any proceedings (other than proceedings for the voluntary liquidation and
dissolution of a Subsidiary) relating to the Borrower or the Guarantor or any
of their respective Subsidiaries under the Bankruptcy Law of any jurisdiction,
whether now or hereafter in effect, or any such petition or application is
filed, or any such proceedings are commenced, against the Borrower or the
Guarantor or any of their respective Subsidiaries and the Borrower or the
Guarantor or such Subsidiary by any act indicates its approval thereof, consent
thereto or acquiescence therein, or an order for relief is entered in an
involuntary case under the federal bankruptcy laws, as now or hereafter
constituted, or an order, judgment or decree is entered appointing any such
trustee, receiver, custodian, liquidator or similar official, or approving the
petition in any such proceedings, and such order judgment, or decree remains
unstayed and in effect for more than 60 days; or
(i) Any order, judgment or decree is entered in any
proceedings against the Borrower or the Guarantor decreeing the dissolution of
the Borrower or the Guarantor and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
(j) Any order, judgment or decree is entered in any
proceedings against the Borrower or the Guarantor or any of their respective
Subsidiaries decreeing a split-up of the Sponsor or such Subsidiary which
requires the divestiture of a substantial part, or the divestiture of assets,
or stock of a Subsidiary, which shall have contributed a substantial part of
consolidated net earnings for any of the three fiscal years most recently
ended, and such order, judgment or decree remains unstayed and in effect for
more than 60 days; or
(k) Any Reportable Event shall have occurred, or any
finding or determination shall be made with respect to a Plan under Section
4041(c) or (e) of ERISA, or any fact or circumstance shall occur with respect
to a Plan which, in the opinion of the Required Participants, provides grounds
for the commencement of any proceeding under Section 4042 of ERISA, or any
proceeding shall be commenced with respect to a Plan under Section 4042 of
ERISA; or
(l) There shall exist or occur any Event of Default as
provided under the terms of any other Loan Document, or any Loan Document
ceases to be in full force and effect or the validity or enforceability thereof
is disaffirmed by or on behalf of any Loan Party, or at any time it is or
becomes unlawful for any Loan Party to perform or comply with its obligations
under any
32
37
Loan Document, or the obligations of Loan Party under any Loan Document are not
or cease to be legal, valid and binding on Loan Party; or
(m) The Borrower or the Guarantor or any of their
respective Subsidiaries shall fail to make any payment as and when such payment
is due under the Revolving Credit Agreement, the Loan Facility Agreement or the
Synthetic Lease Documents, or any other default, event or condition shall have
occurred or exist under the Revolving Credit Agreement, the Loan Facility
Agreement or the Synthetic Lease Documents, the effect of which is to cause, or
to permit the holder of the obligations of the Borrower or the Guarantor or any
such Subsidiary under the Revolving Credit Agreement, the Loan Facility
Agreement or the Synthetic Lease Documents to cause, the obligations of the
Borrower or the Guarantor or any of their respective Subsidiaries, or any
portion thereof, to become due prior to its stated maturity date or prior to
its regularly scheduled date of payment;
(n) a Change in Control shall occur or exist; or
(o) any provision of the Guarantee Agreement shall for
any reason cease to be valid and binding on, or enforceable against, the
Guarantor, or the Guarantor shall so state in writing, or the Guarantor shall
seek to terminate the Guarantee Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) 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 (g) or (h) 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 VIII
THE ADMINISTRATIVE AGENT
SECTION 8.1. APPOINTMENT OF ADMINISTRATIVE AGENT. 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
33
38
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.
SECTION 8.2. 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 9.2), 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 9.2) 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 8.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
Each of the Lenders 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 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 8.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received
34
39
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 8.5. 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 8.6. 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 8.7. 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 provided that 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, 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 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 8.7 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)
35
40
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 VIII 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 8.8. 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.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. 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. Puerto Rico
c/o Xxxxx Rents, Inc.
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
To the Administrative Agent: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X.X.,
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
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 shall not be effective until actually received by such
Person at its address specified in this Section 9.1.
36
41
(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 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 9.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent or
any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the 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 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
shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Administrative Agent or any Lender 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 therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower, the Guarantor and the Required Lenders or
the Borrower, the Guarantor 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 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 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 2.16 (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
37
42
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; (vii) release all or substantially all collateral (if any) securing any
of the Obligations, 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 without the prior
written consent of such Person.
SECTION 9.3. 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
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
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 or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative
Agent 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 any actual or
proposed use of the proceeds therefrom, (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 shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment.
(c) The 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.
38
43
(d) To the extent that the Borrower fails to pay any
amount required to be paid to the Administrative Agent under clauses (a), (b)
or (c) hereof, each Lender severally agrees to pay to the Administrative Agent
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 in its capacity as such.
(e) To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, 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 the use
of proceeds thereof.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.4. 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 may not assign or transfer any
of its rights hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the 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 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 must give their prior written consent (which consent
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 the execution and
delivery of the Assignment and
39
44
Acceptance and payment by such assignee to the assigning Lender of an amount
equal to the purchase price agreed between such Persons, 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 2.12, 2.13 and
2.14 and 9.3. 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 or the Administrative Agent, 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 and the Loans owing to it); 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 Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement
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 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 9.2(b) that affects
the Lender. The Borrower agrees that each Lender shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 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 2.13 or 2.15 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Lender unless the sale of such participation is made with the Borrower's prior
written consent. To the extent permitted by law, the Borrower agrees that each
Participant shall be entitled to the benefits of Section 2.16 as though it were
a Lender, provided, that such Participant agrees to share with the Lenders the
proceeds thereof in accordance with Section 2.16 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 2.15 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
2.15(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
40
45
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.
SECTION 9.5. 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 hereby irrevocably and unconditionally
submits, 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 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 irrevocably and unconditionally waives
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 9.1.
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 9.6. 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 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
41
46
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.7. 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 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, any such notice being expressly waived by the
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 at any time held or other obligations at any time owing by such
Lender to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender, as the case may be, irrespective of whether
such Lender shall have made demand hereunder and although such Obligations may
be unmatured. Each Lender agrees promptly to notify the Administrative Agent
and the Borrower after any such set-off and any application made by such
Lender; provided, that the failure to give such notice shall not affect the
validity of such set-off and application.
SECTION 9.8. 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 9.9. 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, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent
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 other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15, and 9.3 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, 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.
SECTION 9.10. 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
42
47
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 9.11. CONFIDENTIALITY. Each of the Administrative
Agent 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 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, 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 9.11, to
any actual or prospective assignee or Lender, 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 9.12. 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 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.
SECTION 9.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR
TAX LAWS. If (i) any preparation of the financial statements referred to in
Section 5.1 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) result in a material
change in the method of calculation of financial covenants, standards or terms
found in this Agreement, (ii) there is any change in the Guarantor's fiscal
quarter or fiscal year, or (iii) there is a material change in federal tax laws
which materially affects any of the ability of the Loan Parties to comply with
the financial covenants, standards or terms found in this Agreement, the Loan
Parties and the Lenders agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating any of the financial
43
48
condition of the Loan Parties shall be the same after such changes as if such
changes had not been made. Unless and until such provisions have been so
amended, the provisions of this Agreement shall govern.
(remainder of page left intentionally blank)
44
49
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER:
XXXXX RENTS, INC. PUERTO RICO
By
-----------------------------------------
Name:
Title:
GUARANTOR:
XXXXX RENTS, INC.
By
-----------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT AND LENDERS
SUNTRUST BANK, AS ADMINISTRATIVE AGENT
AND AS A LENDER
By
-----------------------------------------
Name:
Title:
Term Loan Commitment: $5,000,000
FIRST UNION NATIONAL BANK
By
-----------------------------------------
Name:
Title:
Term Loan Commitment: $5,000,000
50
EXHIBIT A
NOTE
$ ___________
Atlanta, Georgia __________________,_________
FOR VALUE RECEIVED, the undersigned, XXXXX RENTS, INC. PUERTO RICO, a
Puerto Rico corporation (the "BORROWER"), hereby promises to pay to
_____________________ (the "LENDER") or its registered assigns, at the office
of SunTrust Bank ("SUNTRUST") at 000 Xxxxxxxxx Xx., X.X., Xxxxxxx, Xxxxxxx
00000, on the Maturity Date, as defined in the Term Loan Agreement dated as of
November ___, 2000 (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, Xxxxx
Rents, Inc., as Guarantor, the lenders from time to time party thereto and
SunTrust, as administrative agent for the lenders, the aggregate unpaid
principal amount of the Term Loan made by the Lender to the Borrower pursuant
to the Credit Agreement, and the principal amount of the Term Loan made to the
Borrower by the Lender pursuant to the Credit Agreement and payable to the
Lender on such date as specified therein, in each case 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 reasonable costs of
collection, including the reasonable attorneys' fees of the Lender actually
incurred.
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 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 Note and the
Credit Agreement.
This 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. THIS NOTE SHALL
BE CONSTRUED IN
Exhibit 3.1(b)(vii)
51
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. PUERTO RICO
By:
-----------------------------------------
Name:
Title:
[SEAL]
