1
EXHIBIT 10.1
[Execution Copy]
U.S. $100,000,000
CREDIT AGREEMENT,
dated as of February 13, 1998
among
MEDAPHIS CORPORATION
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders
and
WACHOVIA BANK, N.A.,
as the Administrative Agent for the Lenders,
ARRANGED BY
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................................................1
1.2. Use of Defined Terms...............................................................................24
1.3. Cross-References...................................................................................24
1.4. Accounting and Financial Determinations............................................................24
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
2.1. Commitments........................................................................................25
2.1.1. Revolving Loan Commitments.........................................................................25
2.1.2. Swing Line Loan Commitment.........................................................................25
2.1.3. Letter of Credit Commitment........................................................................25
2.1.4. Lenders Not Permitted or Required to Make Loans....................................................25
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit........................................26
2.2. Reduction of the Commitment Amount.................................................................26
2.3. Borrowing Procedures, etc..........................................................................26
2.3.1. Revolving Loans....................................................................................26
2.3.2. Swing Line Loans...................................................................................26
2.4. Continuation and Conversion Elections..............................................................28
2.5. Funding............................................................................................29
2.6. Issuance Procedures................................................................................29
2.6.1. Other Lenders' Participation.......................................................................29
2.6.2. Disbursements......................................................................................30
2.6.3. Reimbursement......................................................................................30
2.6.4. Deemed Disbursements...............................................................................30
2.6.5. Nature of Reimbursement Obligations................................................................31
2.7. Notes, etc.........................................................................................31
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application............................................................31
3.1.1. Repayments and Prepayments.........................................................................31
3.1.2. Application........................................................................................34
3.2. Interest Provisions................................................................................35
3.2.1. Rates..............................................................................................35
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Section Page
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3.2.2. Post-Maturity Rates................................................................................35
3.2.3. Payment Dates......................................................................................35
3.3. Fees...............................................................................................35
3.3.1. Commitment Fee.....................................................................................36
3.3.2. Agent's Fee........................................................................................36
3.3.3. Letter of Credit Fee...............................................................................36
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.........................................................................36
4.2. Deposits Unavailable...............................................................................37
4.3. Increased LIBO Rate Loan Costs, etc................................................................37
4.4. Funding Losses.....................................................................................37
4.5. Increased Capital Costs............................................................................38
4.6. Taxes..............................................................................................38
4.7. Payments, Computations, etc........................................................................40
4.8. Sharing of Payments................................................................................40
4.9. Setoff.............................................................................................40
4.10. Replacement of Lenders.............................................................................41
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension...........................................................................41
5.1.1. Resolutions, etc...................................................................................42
5.1.2. Closing Date Certificate...........................................................................42
5.1.3. Delivery of Notes..................................................................................42
5.1.4. Pledge Agreement...................................................................................42
5.1.5. Subsidiary Guaranty................................................................................43
5.1.6. Security Agreement.................................................................................43
5.1.7. Copyright Security Agreement and Trademark Security Agreement......................................44
5.1.8. Financial Information, etc.........................................................................44
5.1.9. Compliance Certificate.............................................................................44
5.1.10. Purchase and Sale of Senior Notes, etc. ...........................................................44
5.1.11. Perfection Certificate.............................................................................44
5.1.12. Payment of Outstanding Indebtedness, etc...........................................................44
5.1.13. Litigation.........................................................................................44
5.1.14. Material Adverse Change............................................................................45
5.1.15. Approvals..........................................................................................45
5.1.16. Insurance..........................................................................................45
5.1.17. Opinions of Counsel................................................................................45
5.1.18. Other Representations and Warranties...............................................................45
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Section Page
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5.1.19. Closing Fees, Expenses, etc........................................................................45
5.2. All Credit Extensions..............................................................................45
5.2.1. Compliance with Warranties, No Default, etc........................................................45
5.2.2. Credit Extension Request, etc......................................................................46
5.2.3. Satisfactory Legal Form............................................................................46
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Corporate Existence and Power......................................................................46
6.2. Authorization, Execution and Enforceability; Lien Perfection.......................................47
6.3. Governmental Authorization.........................................................................47
6.4. Contravention......................................................................................47
6.5. Financial Information, etc.........................................................................47
6.6. Litigation.........................................................................................48
6.7. Taxes..............................................................................................48
6.8. Subsidiaries.......................................................................................48
6.9. Not a Regulated Entity.............................................................................48
6.10. Full Disclosure....................................................................................48
6.11. Permits............................................................................................49
6.12. Real Property Interests............................................................................49
6.13. Compliance with ERISA..............................................................................49
6.14. Ownership of Properties............................................................................49
6.15. Environmental Warranties...........................................................................49
6.16. Intellectual Property..............................................................................51
6.17. Regulations G, U and X.............................................................................51
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants..............................................................................51
7.1.1. Financial Information, Reports, Notices, etc.......................................................51
7.1.2. Maintenance of Properties..........................................................................54
7.1.3. Payment of Obligations.............................................................................54
7.1.4. Insurance..........................................................................................54
7.1.5. Conduct of Business and Maintenance of Existence...................................................54
7.1.6. Compliance with Laws...............................................................................54
7.1.7. Inspection of Property, Books and Records..........................................................54
7.1.8. Subsidiaries.......................................................................................55
7.1.9. Future Subsidiaries................................................................................55
7.1.10. Use of Proceeds....................................................................................55
7.2. Negative Covenants.................................................................................56
7.2.1. Business Activities................................................................................56
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Section Page
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7.2.2. Indebtedness.......................................................................................56
7.2.3. Liens..............................................................................................57
7.2.4. Financial Covenants................................................................................59
7.2.5. Investments........................................................................................61
7.2.6. Restricted Payments, etc...........................................................................62
7.2.7. Capital Expenditures, etc..........................................................................62
7.2.8. Cash Settlement Payments...........................................................................63
7.2.9. Transactions with Affiliates.......................................................................63
7.2.10. Consolidations and Mergers.........................................................................63
7.2.11. Stock of Subsidiaries..............................................................................64
7.2.12. Permitted Dispositions.............................................................................64
7.2.13. Modification of Certain Agreements.................................................................64
7.2.14. Restrictive Agreements, etc........................................................................64
7.2.15. Sale and Leaseback.................................................................................65
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................................................65
8.1.1. Non-Payment of Obligations.........................................................................65
8.1.2. Breach of Warranty.................................................................................65
8.1.3. Non-Performance of Certain Covenants and Obligations...............................................65
8.1.4. Non-Performance of Other Covenants and Obligations.................................................65
8.1.5. Default on Other Indebtedness......................................................................65
8.1.6. Judgments, etc.....................................................................................66
8.1.7. Pension Plans......................................................................................66
8.1.8. Change in Control..................................................................................66
8.1.9. Bankruptcy, Insolvency, etc........................................................................66
8.1.10. Impairment of Security or Collateral, etc..........................................................67
8.2. Action if Bankruptcy...............................................................................67
8.3. Action if Other Event of Default...................................................................67
ARTICLE IX
THE AGENTS
9.1. Actions............................................................................................67
9.2. Funding Reliance, etc..............................................................................68
9.3. Exculpation........................................................................................68
9.4. Successor..........................................................................................68
9.5. Credit Extensions by each Agent....................................................................69
9.6. Credit Decisions...................................................................................69
9.7. Copies, etc........................................................................................70
9.8. The Swing Line Lender, the Issuer, the Syndication
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Agent and the Administrative Agent...............................................................70
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...........................................................................70
10.2. Notices............................................................................................71
10.3. Payment of Costs and Expenses......................................................................71
10.4. Indemnification....................................................................................72
10.5. Survival...........................................................................................73
10.6. Severability.......................................................................................73
10.7. Headings...........................................................................................73
10.8. Execution in Counterparts, Effectiveness, etc......................................................74
10.9. Governing Law; Entire Agreement....................................................................74
10.10. Successors and Assigns.............................................................................74
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes............................74
10.11.1. Assignments........................................................................................74
10.11.2. Participations.....................................................................................76
10.12. Other Transactions.................................................................................77
10.13. Confidentiality....................................................................................77
10.14. Forum Selection and Consent to Jurisdiction........................................................78
10.15. Waiver of Jury Trial...............................................................................78
10.16. Termination........................................................................................79
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Notice Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT B-3 - Form of Borrowing Base Certificate
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E-1 - Form of Compliance Certificate
EXHIBIT E-2 - Form of Preliminary Compliance Certificate
EXHIBIT F - Form of Security Agreement
EXHIBIT G - Form of Pledge Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT I - Form of Perfection Certificate
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Opinion of Counsel to the Obligors
EXHIBIT L - Form of Swing Line Account Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 13, 1998, is among
MEDAPHIS CORPORATION, a Delaware corporation (the "Borrower"), the various
financial institutions from time to time parties hereto (the "Lenders"), DLJ
CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (the "Syndication Agent")
for the Lenders, and WACHOVIA BANK, N.A. ("Wachovia") as administrative agent
(the "Administrative Agent") for the Lenders (the Syndication Agent and the
Administrative Agent are sometimes referred to herein as the "Agents" and each
as an "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower is engaged, directly and indirectly through its
various Subsidiaries (such capitalized term, and other terms used herein, to
have the meanings provided in Section 1.1), in the business of providing
healthcare information products, healthcare business management services and
enabling technologies in selected industries, all as more fully described in
the Borrower's 10-K for its 1997 Fiscal Year;
WHEREAS, the Borrower desires to obtain Commitments from the Lenders
and the Issuer pursuant to which Loans and Letters of Credit, in a maximum
aggregate principal amount (including the aggregate principal amount of Swing
Line Loans and Letter of Credit Outstandings) at any one time outstanding not
to exceed $100,000,000, will be made from time to time to the Borrower prior to
the Commitment Termination Date; and
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions hereinafter set forth, to extend the Commitments and
make Loans to the Borrower and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Account" means (i) any account (as that term is defined in Section
9-106 of the UCC) of the Borrower or any Guarantor arising from the sale or
lease of goods or the rendering of services by the Borrower or any Guarantor in
the ordinary course of business and (ii) amounts receivable, not to exceed
$300,000 at any time outstanding, from Envoy-NEIC to the Borrower or any
Guarantor representing rebates on fees paid or payable.
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"Additional Compensation Amount" means, at any time of determination
and with respect to any Lender (other than the Swing Line Lender), such
Lender's Percentage of (i) a per annum rate equal to the positive difference,
if any, between (x) the then Applicable Margin for Base Rate Loans and (y)
0.50%, multiplied by (ii) the daily average outstanding balance of all Swing
Line Loans for the period from (and including) the day following the fifth
consecutive Business Day on which Swing Line Loans in excess of $1,000,000 have
remained outstanding to (but excluding) the Refunding Date. The Additional
Compensation Amount shall be calculated on the basis of a year comprised of 365
or 366 days (as applicable) for the actual number of days elapsed.
"Administrative Agent" is defined in the preamble and includes each
other Person appointed as the successor Administrative Agent pursuant to
Section 9.4.
"Affected Lender" is defined in Section 4.10.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. "Control" of a Person means the power, directly or indirectly, (i) to
vote 25% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election (as applicable) of directors, managing members or
general partners, or (ii) to direct or cause the direction of the management
and policies of such Person (whether by contract or otherwise); provided, that
in no event shall any Agent or Lender or any of their Affiliates be deemed an
Affiliate of the Borrower for purposes hereof or any other Loan Document.
"Agent" and "Agents" are defined in the preamble.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upward, if
necessary, to the next highest 1/16 of 1%) equal to the higher of (x) the Base
Rate in effect on such day, and (y) the Federal Funds Rate in effect on such
day plus 1/2 of 1%. Changes in the rate of interest on that portion of any
Loans maintained as Base Rate Loans will take effect simultaneously with each
change in the Alternate Base Rate. The Administrative Agent will give notice
promptly to the Borrower and the Lenders of changes in the Alternate Base Rate;
provided, that the failure to give such notice shall not affect the Alternate
Base Rate in effect after such change.
"Applicable Commitment Fee" means, subject to the proviso hereto, at
all times during the applicable periods set forth below with respect to the
commitment fee payable to the Lenders pursuant to Section 3.3.1, (i) from the
Effective Date through (and including) the six-month anniversary of the
Effective Date 0.50% per annum and (ii) thereafter, at the applicable
percentage per annum set forth below under the column entitled "Applicable
Commitment Fee":
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Applicable
Leverage Ratio Commitment Fee
---------------- ----------------
greater than or
equal to 2.5:1 0.500%
greater than or
equal to 2.0:1 and
less than 2.5:1 0.375%
less than 2.0:1 0.250%
provided, however, that, the commitment fee payable on (but only on) the Excess
Portion of the Revolving Loan Commitment Amount pursuant to Section 3.3.1 shall
be (i) 0.75% per annum from the Effective Date through (and including) the
six-month anniversary of the Effective Date, and (ii) thereafter, at the
applicable percentage per annum set forth below under the column entitled
"Excess Portion Applicable Commitment Fee":
Excess Portion
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or
equal to 2.5:1 0.750%
greater than or
equal to 2.0:1 and
less than 2.5:1 0.625%
less than 2.0:1 0.500%
The Leverage Ratio used to compute the Applicable Commitment Fee shall
be that set forth in the Compliance Certificate most recently delivered by the
Borrower to the Administrative Agent. Changes in the Applicable Commitment Fee
resulting from a change in the Leverage Ratio shall become effective two
Business Days after delivery by the Borrower to the Administrative Agent of a
new Compliance Certificate pursuant to clause (c) of Section 7.1.1. If the
Borrower shall fail to deliver a Compliance Certificate within 45 days after
the end of any Fiscal Quarter (or within 90 days, in the case of the last
Fiscal Quarter of the Fiscal Year), the Applicable Commitment Fee from and
including the 46th (or 91st, as the case may be) day after the end of such
Fiscal Quarter to but not including the date the Borrower delivers to the
Administrative Agent a Compliance Certificate shall conclusively equal the
highest Applicable Commitment Fee set forth above until such time as a
Compliance Certificate is delivered.
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"Applicable Margin" means at all times during the applicable periods
set forth below:
(a) with respect to the unpaid principal amount of each Loan
maintained as a Base Rate Loan, (i) from the Effective Date through
(and including) the six-month anniversary of the Effective Date, 1.5%
per annum, and (ii) thereafter, at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for Base
Rate Loans"; and
(b) with respect to the unpaid principal amount of each Loan
maintained as a LIBO Rate Loan, (i) from the Effective Date through
(and including) the six-month anniversary of the Effective Date, 2.5%
per annum, and (ii) thereafter, at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for LIBO
Rate Loans":
Applicable Margin For Applicable Margin For
Leverage Ratio Base Rate Loans LIBO Rate Loans
------------------------------------ --------------------------------- -------------------------------
greater than 3.75:1 1.75% 2.75%
less than or equal to 3.75:1
and greater than 3.0:1 1.50% 2.50%
less than or equal to 3.0:1
and greater than 2.5:1 1.25% 2.25%
less than or equal to 2.50:1
and greater than 2.00:1 0.75% 1.75%
less than or equal to 2.00:1
and greater than 1.50:1 0.25% 1.25%
less than or equal to 1.50:1 0.00% 1.00%
The Leverage Ratio used to compute the Applicable Margin following the
Effective Date shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Borrower to the Administrative
Agent. Changes in the Applicable Margin resulting from a change in the Leverage
Ratio shall become effective two Business Days after delivery by the Borrower
to the Administrative Agent of a new Compliance Certificate pursuant to clause
(c) of Section 7.1.1. If the Borrower shall fail to deliver a Compliance
Certificate within 45 days after the end of any Fiscal Quarter (or within 90
days, in the case of the last Fiscal Quarter of the Fiscal Year), the
Applicable Margin from and including the 46th (or 91st, as the case may be) day
after the end of such Fiscal Quarter to but not including the date the Borrower
delivers to the Administrative Agent a Compliance Certificate shall
conclusively equal the highest Applicable Margin set forth above until such
time as a Compliance Certificate is delivered.
"Arranger" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
a Delaware corporation.
"Assignee Lender" means each Person described in either clause (a) or
(b) of Section 10.11.1 to whom any assignment and delegation referred to in
such Section is to be made.
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"Authorized Officer" means, relative to any Obligor, those of its
officers, general parties or managing members (as applicable) whose signatures
and incumbency shall have been certified to the Administrative Agent, the
Lenders and the Issuers pursuant to Section 5.1.1 or who are authorized to act
on behalf of such Obligor in respect of the Loan Documents pursuant to
certified resolutions of the Board of Directors of such Obligor delivered to
the Administrative Agent pursuant to
Section 5.1.1 or at any time thereafter.
"Base Rate" means, at any time, the rate of interest then most
recently established or announced by the Administrative Agent in Atlanta,
Georgia as its prime rate for U.S. dollars loaned in the United States. The
Base Rate is not necessarily intended to be the lowest rate of interest
determined by the Administrative Agent in connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" is defined in the preamble.
"Borrower Collateral Document" means the Pledge Agreement or the
Security Agreement in each case as amended, supplemented or otherwise modified.
"Borrowing" means the making of Loans of the same type and, in the
case of LIBO Rate Loans, having the same Interest Period, made by all Lenders
required to make such Loans on the same Business Day and pursuant to the same
Borrowing Request in accordance with Section 2.1.
"Borrowing Base Amount" means, at any time, the Net Asset Value of all
Eligible Accounts and Unbilled Eligible Accounts at such time as determined in
accordance with the definition of "Net Asset Value" and as certified by the
Borrower in the most recently delivered Borrowing Base Certificate, including
the Borrowing Base Certificate delivered pursuant to clause (b) of Section
5.1.8.
"Borrowing Base Certificate" means a certificate duly completed and
executed by the president, chief executive officer, treasurer, assistant
treasurer, controller or chief financial Authorized Officer of the Borrower,
substantially in the form of Exhibit B-3 hereto.
"Borrowing Request" means a Loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Bridge Note Agreement" means the Note Purchase Agreement, dated as of
December 23, 1997, among the Borrower, certain of its Subsidiaries and MED
Funding Inc., as amended.
"Bridge Notes" means the Senior Secured Increasing Rate Notes issued
by the Borrower pursuant to the Bridge Note Agreement.
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"BSG Government Solutions Entity" means BSG Government Solutions,
Inc., a wholly-owned Subsidiary of the Borrower and each other Subsidiary of
the Borrower as to which at least 80% of its revenues are generated from
business with Governmental Authorities.
"Business Day" means (i) any day which is neither a Saturday or Sunday
nor a legal holiday on which banks are authorized or required to be closed in
New York, New York or Atlanta, Georgia, and (ii) relative to the making,
continuing, prepaying or repaying of any LIBO Rate Loans, any day which is a
Business Day described in clause (i) above and which is also a day on which
dealings in Dollars are carried on in the interbank eurodollar market of the
Administrative Agent's LIBOR Office.
"Capital Expenditures" means, for any period, the aggregate amount of
all expenditures of the Borrower and its Subsidiaries for fixed or capital
assets made during such period which, in accordance with GAAP, would be
classified as capital expenditures.
"Capital Lease" means any lease of property, real or personal, in
respect of which the obligations of the lessee thereunder are required in
accordance with GAAP to be capitalized on a balance sheet of such lessee.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equity equivalents (however designated,
whether voting or non-voting) of such Person's capital, whether now or
hereafter outstanding or issued.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any Capital Lease. For purposes of
each Loan Document the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount due
under such Capital Lease prior to the first date upon which such lease expires
or may be terminated by the lessee without payment of a premium or a penalty.
"Cash Equivalent Investment" means, at any time, (i) securities issued
or directly and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof (provided that the full faith and credit
of the United States of America is pledged in support thereof), (ii) time
deposits and certificates of deposit of any domestic commercial bank (including
a domestic branch of a foreign bank) whose outstanding senior long-term debt
securities are rated either A- or higher by S&P or A3 or higher by Xxxxx'x,
(iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) entered into with
any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper rated at least A-1 or the equivalent thereof by S&P or at
least P-1 or the equivalent thereof by Xxxxx'x, maturing within one year after
the date of acquisition, (v) obligations denominated in a currency other than
dollars which are of a credit quality and maturity comparable to those referred
to in clauses (i) through (iv) above that are customarily used for short-term
investment of excess cash in the markets in which the Borrower and its
Subsidiaries operate, and (vi) shares of a money market mutual fund
substantially all of whose investments are described in clauses (i) through
(iv) above.
"Cash Management Agreements" means any agreement entered into from
time to time between the Borrower or any of its Subsidiaries, on the one hand,
and Wachovia Bank, N.A. or any of its Affiliates or any other banking or
financial institution, on the other hand, in connection with cash management
services for operating, collection, payroll and trust accounts of the Borrower
or its Subsidiaries provided by such banking
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or financial institution, including, without limitation, automatic clearing
house services, control disbursement services, electronic funds transfer
services, information reporting services, lockbox services, stop payment
services, and wire transfer services.
"Cash Management Services Obligations" means any and all obligations
of the Borrower or any its Subsidiaries under any of the Cash Management
Agreements or otherwise relating to any cash management services.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower or any Guarantor.
"Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the
Borrower or any of its Subsidiaries in connection therewith, but excluding any
proceeds or awards required to be paid to a creditor (other than the Lenders)
which holds a first-priority Lien permitted by Section 7.2.3 on the property
which is the subject of such Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change of Control" means such time as (a) any "person" or group
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act of 1934,
as amended) shall become the beneficial owner, by way of merger, consolidation
or otherwise, of 35% or more of the voting power of all classes of voting
securities of the Borrower; or (b) a sale or transfer of all or substantially
all of the assets of the Borrower to any such person or group has been
consummated.
"Closing Date Certificate" means the closing date certificate executed
and delivered by an Authorized Officer of the Borrower pursuant to Section
5.1.2, substantially in the form of Exhibit D hereto.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time
to time.
"Collateral" means all assets of the Borrower and the Guarantors
purported to be secured by Liens pursuant to the Loan Documents.
"Collateral Document" means, as the context may require, any Borrower
Collateral Document, any Subsidiary Collateral Document, any Copyright Security
Agreement or any Trademark Security Agreement.
"Commitment" means, as the context may require (i) a Lender's
Revolving Loan Commitment or Letter of Credit Commitment or (ii) the Swing Line
Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Revolving
Loan Commitment Amount, the Letter of Credit Commitment Amount or the Swing
Line Loan Commitment Amount.
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14
"Commitment Letter" means the commitment letter, dated January 23,
1998, from DLJ and the Arranger to the Borrower.
"Commitment Termination Date" means the earliest of (i) the date on
which the Commitment Amount is terminated in full or reduced to zero pursuant
to Section 2.2, (ii) the Stated Maturity Date and (iii) the date on which any
Commitment Termination Event occurs. Upon the occurrence of any event described
above, all Commitments shall terminate automatically and without any further
action.
"Commitment Termination Event" means (i) the occurrence of any Event
of Default described in Section 8.1.9, or (ii) the occurrence and continuance
of any other Event of Default and either (x) the declaration of all or any
portion of the Loans or Letters of Credit Outstandings to be due and payable
pursuant to Section 8.3, or (y) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the Borrower that
the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit E-1 hereto, together with such changes thereto as may be agreed upon
from time to time by the Administrative Agent and the Borrower.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
Indebtedness of any other Person (other than by endorsements of instruments in
the course of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person. The amount of any Person's
obligation under any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby; provided that if such
principal amount or guaranteed portion thereof is not stated or determinable,
the amount thereof shall be deemed to be such Person's maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith.
"Continuation/Conversion Notice" means a notice of continuation or
conversion notice and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Conversion Account" means an Account which has arisen out of the
Borrower's Healthcare Services Business and has resulted from the conversion of
the billing arrangement for such Account from a contingent fee billing basis to
a fee for services billed basis.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit C to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
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15
"Credit Extension" means, as the context may require, (i) the making
of a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any existing Letter of Credit, by an
Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"DLJ" is defined in the preamble.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent
of the Required Lenders.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" set forth opposite its
name on Schedule II hereto or in a Lender Assignment Agreement, or such other
office of a Lender (or any successor or assign of such Lender) within the
United States as may be designated from time to time by notice from such
Lender, as the case may be, to each other Person party hereto.
"EBITDA" means, for the Borrower and its Subsidiaries, for any
applicable period, the sum (without duplication) of
(a) Net Income,
plus
(b) Interest Expense of the Borrower and its Subsidiaries,
plus
(c) the amount deducted, in determining Net Income, of all
federal, state and local taxes (whether paid in cash or deferred) of
the Borrower and its Subsidiaries,
plus
(d) the amount deducted, in determining Net Income,
representing depreciation of assets of the Borrower and its
Subsidiaries,
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plus
(e) the amount deducted in determining Net Income,
representing amortization of intangible assets of the Borrower and its
Subsidiaries,
(f) the aggregate amount deducted in determining Net Income
representing net losses realized in connection with the sale or other
disposition of assets by the Borrower and its Subsidiaries,
plus
(g) the amount deducted in determining Net Income
representing non-cash charges and expenses and other non-cash items
during such period (including any non-cash write-off of deferred
financing fees in respect of the Bridge Notes and the non-cash
cumulative effect of any change in GAAP),
plus
(h) with respect to any applicable period which includes a
1997 Fiscal Quarter, amounts, not to exceed $93.1 million in the
aggregate, deducted in determining Net Income representing
restructuring and other extraordinary and unusual charges incurred
during Fiscal Year 1997.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Account" means, with respect to the Borrower or any
Guarantor, any Account as to which each of the following requirements has been
fulfilled:
(a) the Borrower or such Guarantor owns such Account free and
clear of all Liens other than any Lien permitted to exist under clause
(a), (b), (d) or (e) of Section 7.2.3;
(b) such Account is a legal, valid, binding and enforceable
obligation of the Person obligated under such Account (the "Account
Debtor");
(c) such Account is not subject to any bona fide asserted
dispute, setoff, counterclaim or other right, claim or defense on the
part of the Account Debtor or any other Person denying liability under
such Account;
(d) the Borrower or such Guarantor has, after giving effect
to any applicable provision of the UCC, the full and unqualified right
to xxxxx x Xxxx on such Account for the benefit of the Secured
Parties, as security for the Obligations (and the Administrative Agent
shall, subject to Liens described in clause (a) above, have a
perfected, first-priority Lien on such Account);
(e) such Account is evidenced by an invoice rendered to the
Account Debtor (which shall include computer records) or is reflected
by computer records maintained by the Borrower or such Guarantor
evidencing such Account and is not evidenced by any instrument or
chattel paper (as the
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terms "instrument" and "chattel paper" are defined in Section 9-105 of
the UCC), unless such instrument or chattel paper has been delivered
to the Administrative Agent;
(f) with respect to any such Account, (i) the Account Debtor
is not an Affiliate of the Borrower or any Guarantor, other than a
Joint Venture if such Account has arisen in a transaction which
complies with Section 7.2.9 hereof, or (ii) the Account Debtor is not
the subject of any reorganization, bankruptcy, receivership,
custodianship, insolvency or other condition analogous thereto, unless
(x) such Account has been given administrative expense status
(constituting a first priority claim) in bankruptcy and will be paid
in the ordinary course of business in accordance with the terms
thereof, or (y) the Administrative Agent has not notified the Borrower
in writing that such Account is an unacceptable collection risk;
(g) such Account is not outstanding more than 120 days from
the original invoice date for such Account;
(h) such Account is not an Account owing by an Account Debtor
having, at the time of any determination of Eligible Accounts, in
excess of 10% of the aggregate outstanding amount of all Accounts of
such Account Debtor (other than (x) Accounts arising in connection
with systems integration services, development of custom applications,
software installations or hardware resales or (y) Conversion Accounts)
outstanding more than 120 days past the original invoice date for such
Account; and
(i) the Account Debtor in respect of such Account is located
within the United States, unless the obligations (or that portion of
such obligations which is acceptable to the Administrative Agent) of
an Account Debtor not located within the United States are secured by
a letter of credit, guaranty or eligible bankers' acceptance having
terms, and from such issuers and confirmation banks, as are reasonably
acceptable to the Administrative Agent.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to or imposing liability or
standards of conduct concerning public health and safety and protection of the
environment, all as amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"ERISA Group" means the Borrower, any of its Subsidiaries and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
"Excess Portion" means, with respect to the Revolving Loan Commitment
Amount, at any time of determination, the positive excess, if any, of
$50,000,000 over the sum of (x) the aggregate outstanding principal amount of
all Revolving Loans and (y) the aggregate outstanding amount of all Letter of
Credit Outstandings.
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18
"Event of Default" is defined in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Disposition" is defined in Section 7.2.12.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to (i) the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or (ii) if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
"Fee Letter" means (i) the confidential letter, dated January 23,
1998, from DLJ and the Arranger to the Borrower or (ii) the confidential
letter, dated February 11, 1998, from Wachovia to the Borrower.
"Fiscal Quarter" means a quarter ending on the last day of March,
June, September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1998 Fiscal Year") refer to the Fiscal Year
ending on December 31 of such calendar year.
"Foreign Subsidiary" means any Subsidiary that is not a U.S. Subsidiary
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means 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.
"Guarantor" means each direct or indirect U.S. Subsidiary of the
Borrower other than (i) any Subsidiary which is designated with an asterisk
appearing after its name on Item 6.8 of the Disclosure Schedule; provided, such
Subsidiary (x) has been dissolved within 30 days of the Effective Date or (y)
has revenues of $100,000 or less per Fiscal Year, and (ii) any such Subsidiary
which is a Joint Venture.
"Hazardous Material" means (i) any "hazardous substance", as defined
by CERCLA, (ii) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended, or (iii) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material or substance (including any
petroleum product) within the meaning of any other applicable Environmental
Law.
"Healthcare Services Business" means the business sector of the
Borrower and its Subsidiaries providing management services to physicians and
hospitals which, as of the Effective Date, is known as the
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Borrower's "Healthcare Services Group", but excluding any services of a
different type being provided by the Borrower's Per Se Technologies sector as
of such date.
"Hedging Obligations" of any Person means all obligations of such
Person in respect of any swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"including" and "include" means including without limiting the
generality of any description preceding such term, and, for purposes of this
Agreement and each other Loan Document, the parties hereto agree that the rule
of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
"Indebtedness" of any Person means, at any time, without duplication,
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property of services (other than current trade liabilities
incurred in the ordinary course of business and operating leases for equipment
and other assets) or which is evidenced by a note, bond, debenture or similar
instrument, (b) all Capital Lease Liabilities of such Person, (c) all
obligations (contingent or otherwise) of such Person to reimburse any bank or
other Person in respect of letters of credit, banker's acceptances or similar
instruments issued for the account of such Person (other than contingent
obligations on performance bonds for customer contracts in the ordinary course
of business), except to the extent any of the foregoing are secured by cash or
cash equivalents, (d) all Hedging Obligations of such Person, (e) all
Contingent Liabilities of such Person in respect of any obligations of any
other Person and (f) all liabilities of the types described in clauses (a)
through (e) above secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof. For all purposes of this Agreement, the Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Coverage Ratio" means, at the close of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
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to
(b) subject to the proviso to the definition of "Interest
Expense", the sum, without duplication (for all such Fiscal Quarters),
of Interest Expense of the Borrower and each Subsidiary, paid or
payable in cash during such period, but not any previous period.
"Interest Expense" means, for any Fiscal Quarter, the aggregate
consolidated interest expense of the Borrower and each Guarantor for such
Fiscal Quarter, as determined in accordance with GAAP, including the portion of
any payments made in respect of Capitalized Lease Liabilities allocable to
interest expense; provided, however, that for purposes of calculating Interest
Expense hereunder, whether for purposes of Section 7.2.4 or otherwise, Interest
Expense in respect of the Obligations will be deemed to be due and payable on
each March 31st, June 30th, September 30th and December 31st of each calendar
year, regardless of the definition of "Quarterly Payment Date".
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or
2.4 and shall end on (but exclude) the day which numerically corresponds to
such date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to Section 2.3 or 2.4;
provided, however, that (i) the Borrower shall not be permitted to have more
than six Interest Periods in effect at any one time, (ii) if such Interest
Period would otherwise end on a day which is not a Business Day, such Interest
Period shall end on the next following Business Day (unless such next following
Business Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such numerically
corresponding day), and (iii) no Interest Period for any Loan may end later
than the Stated Maturity Date for such Loan.
"Investment" means, relative to any Person, (i) any loan or advance
made by such Person to any other Person (excluding commission, travel, xxxxx
cash, entertainment, moving and similar advances to officers and employees made
in the ordinary course of business), (ii) any Contingent Liability of such
Person incurred in connection with loans or advances described in clause (i),
and (iii) any contribution in or to another Person, whether in cash or other
property, for the purpose of acquiring any ownership or similar interest in
such Person or another Person, or in the assets or businesses of such Person or
another Person, including any ownership or similar interest held by such Person
in any other Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity
thereon and shall, if made by the contribution, transfer or exchange of
property other than cash (including by way of merger or consolidation), be
deemed to have been made in an original principal or capital amount equal to
the fair market value of such property at the time of such Investment as
determined by such Person in good faith.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means Wachovia in its capacity as issuer of the Letters of
Credit. At the request of (i) Wachovia and with the consent of the Borrower and
the Syndication Agent (not to be unreasonably withheld), another Lender or an
Affiliate of Wachovia may issue one or more Letters of Credit hereunder and
(ii) the Borrower and with the consent of the Syndication Agent (not to be
unreasonably withheld), another Lender may issue one or more Letters of Credit
hereunder; provided, that any such Issuer other than Wachovia or one
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of its Affiliates shall be required to provide Wachovia and, if different, the
Administrative Agent with prompt notice as to the amount, issuance or extension
of, and Disbursements under, any such Letter of Credit issued by such Issuer.
"Joint Venture" means any Person in which the Borrower has made an
Investment pursuant to clauses (f) or (j) of Section 7.2.5 and which has been
designated a "Joint Venture" by written notice to the Administrative Agent from
a Responsible Officer of the Borrower; it being agreed that, without limiting
the foregoing, a Joint Venture may be a Subsidiary (including a wholly-owned
Subsidiary) of the Borrower; provided, that (i) except as set forth in clause
(ii) below, each such Joint Venture which is a Subsidiary of the Borrower must
be a direct Subsidiary of (x) the Borrower, (y) a Guarantor which is a
wholly-owned Subsidiary of the Borrower or (z) a non-U.S. Subsidiary of the
Borrower and (ii) each Subsidiary of a Joint Venture which, in turn, is a
Subsidiary of the Borrower must also be a Joint Venture.
"Lender Assignment Agreement" means an assignment agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble and, in addition, shall include
any commercial bank or other financial institution that becomes a Lender
pursuant to Section 10.11.1.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential
damages), disbursements or expenses of any kind or nature whatsoever (including
reasonable attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, any Lender or any Issuer or any of such Person's Affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from (i) any Hazardous Material on, in, under or affecting all or any
portion of any property of the Borrower or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent caused
by Releases from the Borrower's or any of its Subsidiaries' or any of their
respective predecessors' properties, (ii) any misrepresentation, inaccuracy or
breach of any warranty, contained or referred to in Section 6.17, (iii) any
violation or claim of violation by the Borrower or any of its Subsidiaries of
any Environmental Laws or (iv) the imposition of any lien for damages caused by
or the recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by the Borrower or any of its Subsidiaries, or in connection
with any property owned or formerly owned by the Borrower or any of its
Subsidiaries.
"Letter of Credit" is defined in Section 2.1.3; it being understood
that the term "Letter of Credit" does not include any letter of credit issued
from time to time by any Person outside this Agreement.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each Lender, the obligations of each such Lender to participate
in such Letters of Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $10,000,000, as such amount may be permanently reduced from time to
time pursuant to Section 2.2.
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"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of (i) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit, plus (ii) the then aggregate
amount of all unpaid and outstanding Reimbursement Obligations.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Total Indebtedness outstanding on the last day of such
Fiscal Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest per annum equal to the average (rounded upwards, if
necessary, to the nearest 1/100th of 1%) of the offered rate for Dollar
deposits in the London interbank market appear on the Telerate page 3750 (or
any successor page thereto or other reference reasonably acceptable to the
Borrower and the Administrative Agent) as of 11:00 a.m. London, England time
two Business Days prior to the beginning of such Interest Period for delivery
on the first day of such Interest Period, and in an amount approximately equal
to the amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
LIBO Rate
LIBO Rate = -------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect two Business Days before the first day of such
Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "LIBOR Office" set forth opposite its name
on Schedule II hereto or in a Lender Assignment Agreement, or such other office
of a Lender as designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of or including
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23
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, in any such case to secure
payment of a debt or performance of an obligation.
"Loan" means, as the context may require, a Revolving Loan or a Swing
Line Loan.
"Loan Documents" collectively means this Agreement, the Letters of
Credit, each Note, the Fee Letters, the Swing Line Account Agreement, each
agreement pursuant to which the Administrative Agent is granted a Lien to
secure the Obligations and each other agreement, certificate, document or
instrument (exclusive of any Rate Protection Agreement or any Cash Management
Agreement (other than the Swing Line Account Agreement)) to which an Obligor is
a party delivered in connection with this Agreement or such other Loan
Documents, whether or not specifically mentioned herein or therein.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) the rights and remedies, taken as a whole, of the Agents, any Lender or
the Issuer, under the Loan Documents or (iii) the ability of the Obligors,
taken as a whole, to perform their monetary Obligations under the Loan
Documents.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Asset Value" means, at any time of any determination, the sum of
(i) 85% of the amount of the book value (as reflected on the books of the
Borrower) of all Eligible Accounts which are not outstanding more than 90 days
from the original invoice date for such Eligible Accounts, (ii) 50% of the
amount of the book value (as reflected on the books of the Borrower) of all
Eligible Accounts which are outstanding more than 90 days, but not more than
120 days, from the original invoice date for such Eligible Accounts and (iii)
65% of the amount of the book value (as reflected on the books of the Borrower)
of all Unbilled Eligible Accounts, and, in the case of clauses (i) and (ii)
above, valued in accordance with GAAP and net of all credits, discounts and
allowances (and net of all unissued credits in the form of competitive
allowances or otherwise) in respect of such Eligible Accounts.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Borrower or any Guarantor of any Indebtedness of the Borrower
or any Guarantor (other than Indebtedness permitted by Section 7.2.2 as in
effect on the date hereof), the excess of:
(a) the gross cash proceeds received by the Borrower or such
Guarantor from such incurrence, sale or issuance,
over
(b) all underwriting commissions and legal, investment
banking, brokerage and accounting and other professional fees, sales
commissions and disbursements and all other fees, expenses and
charges, in each case actually incurred in connection with such
incurrence, sale or issuance.
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"Net Disposition Proceeds" means, with respect to any sale, transfer
or other disposition of any assets of the Borrower or any Guarantor (other than
an Excluded Disposition), the excess of
(a) the gross cash proceeds received by the Borrower or such
Guarantor from any such sale, transfer or other disposition and any
cash payments received in respect of promissory notes (but only
payments of the principal thereof) or other non-cash consideration
delivered to the Borrower or such Guarantor in respect thereof,
over
(b) the sum of (i) all fees and expenses with respect to
legal, investment banking, brokerage and accounting and other related
fees, sales commissions and disbursements actually incurred in
connection with such sale, transfer or other disposition, (ii) all
taxes and other governmental costs and expenses estimated by the
Borrower to arise in connection with such sale, transfer or other
disposition and (iii) all payments (including principal and accrued
interest) in respect of Indebtedness permitted under this Agreement
secured by such asset, other than (x) Indebtedness hereunder and (y)
Indebtedness incurred in anticipation of such sale; provided, however,
that to the extent the amount actually paid pursuant to clause (ii)
above shall be less than the Borrower's estimate thereof, such
difference shall, pursuant to Section 3.1.1(f), be applied as set
forth in Section 3.1.2.
"Net Equity Proceeds" means with respect to (i) the sale or issuance
by the Borrower to any Person of any Capital Stock of the Borrower or warrants
or options for any such stock or the exercise of any such warrants or options
or (ii) the issuance by any Guarantor of newly-issued Capital Stock of such
Guarantor to any Person other than the Borrower or a Guarantor which is
wholly-owned by the Borrower, the excess of:
(a) the gross cash proceeds received by the Borrower from
such sale or issuance,
over
(b) all underwriting commissions and legal, investment
banking, brokerage and accounting and other related fees, sales
commissions and disbursements actually incurred in connection with
such sale or issuance which have not been paid to Affiliates of the
Borrower in connection therewith.
"Net Income" means, for any period, the aggregate of all amounts
(exclusive of all amounts in respect of any extraordinary gains but including
extraordinary losses) which, in accordance with GAAP, would be included as net
income on the consolidated financial statements of the Borrower and its
Subsidiaries for such period; provided, however, that, for purposes of
calculating EBITDA for any period that includes a Fiscal Quarter ending in 1998
(or the twelve-month period beginning with the date on which any successor
AICPA Statement of Position (an "SOP") to SOP 97-2 becomes effective (SOP 97-
2, together with any such successor SOP, a "Revenue Recognition SOP")), the
Borrower, at its election (as set forth in the applicable Compliance
Certificate), may reverse the effect of any postponement of revenues from such
Fiscal Quarter to a succeeding Fiscal Quarter not included in such period
resulting from adherence to a Revenue Recognition SOP to the extent the
aggregate amount of such revenues not postponed, when added to the aggregate
amount of revenues theretofore not postponed pursuant to this proviso, does not
exceed $7,500,000 in the aggregate; provided, further, however, that, in order
to avoid duplication, when utilizing the previous proviso the Borrower shall
exclude from its determination of revenues for any applicable period revenues
for a Fiscal
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Quarter which (x) pursuant to the preceding proviso, are not so postponed by
the Borrower for purposes hereof and (y) are realized in a succeeding Fiscal
Quarter.
"Net Worth" means the consolidated net worth of the Borrower and its
Subsidiaries, as determined in accordance with GAAP.
"Note" means, as the context may require, a Revolving Note or a Swing
Line Note.
"Obligations" means all obligations (monetary or otherwise whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under or in connection with (i) this Agreement, the Notes, each
Letter of Credit and each other Loan Document (exclusive of any Rate Protection
Agreement or Cash Management Agreement, other than as provided in clause (ii)
below) and (ii) the Swing Line Account Agreement.
"Obligor" means, as the context may require, the Borrower and each
other Person (other than a Secured Party) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to
any of such Obligor's partnership interests, limited liability company
interests or authorized shares of capital stock.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its name on Schedule II hereto or set forth in a Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to any
Lender Assignment Agreement executed by such Lender and its Assignee Lender and
delivered pursuant to Section 10.11.1. As used herein, "Percentage", as it
relates to a Lender's Percentage of Letter of Credit Outstandings or Swing Line
Loans, shall be equal to such Lender's Percentage of Revolving Loans.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of each Obligor that is a party to a
Collateral Document on the date the initial Credit Extension is made,
substantially in the form of Exhibit I hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
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"Permits" means domestic and foreign licenses, permits and approvals,
including provincial, state, federal, city and county permits and approvals.
"Permitted Liens" means Liens expressly permitted to exist pursuant to
Section 7.2.3 hereof.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, association, trust or unincorporated
organization, Governmental Authority or any other legal entity, whether acting
in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means the Pledge Agreement executed and delivered
by an Authorized Officer of the Borrower and each Guarantor party thereto
pursuant to Section 5.1.4, substantially in the form of Exhibit G hereto, as
amended, supplemented, amended and restated or otherwise modified.
"Pledged Subsidiary" means, at any time, each Subsidiary in respect of
which the Administrative Agent has been granted, at such time, a security
interest in and to, or a pledge of, (i) any of the issued and outstanding
shares of Capital Stock of such Subsidiary, or (ii) any intercompany notes of
such Subsidiary owing to the Borrower or another Subsidiary of the Borrower.
"Preliminary Compliance Certificate" means a certificate duly
completed and executed by an Authorized Officer of the Borrower, substantially
in the form of Exhibit E-2 hereto, together with such changes thereto as may be
agreed upon from time to time by the Administrative Agent and the Borrower.
"Quarterly Payment Date" means the first day of April, July, October
and January, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreement" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower or any of
its Subsidiaries under which the counterparty to such agreement is (or at the
time such agreement was entered into, was) a Lender or an Affiliate of a
Lender.
"Receivables Subsidiary" means a Subsidiary of the Borrower which is a
Joint Venture and has as its sole business purpose the purchase of accounts
receivable of customers of the Borrower and its Subsidiaries, together with
such other activities as are reasonably related thereto.
"Refunding Date" is defined in clause (b) of Section 2.3.2.
"Refunding Loan" is defined in clause (b) of Section 2.3.2.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed by the
same investment advisor or investment manager as such Lender.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in of Section 4.10.
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"Replacement Notice" is defined in Section 4.10.
"Required Lenders" means, subject to the proviso below, at any time,
(i) prior to the date of the initial Credit Extension hereunder, Lenders having
at least a majority of the Commitments, and (ii) on and after the date of the
initial Credit Extension, Lenders holding at least a majority of the Total
Exposure Amount; provided, however, that at all times (x) prior to the date of
the initial Credit Extension, until DLJ holds less than 51% of the Commitments
or (y) on and after the date of the initial Credit Extension, until DLJ holds
(for the first time) less than 51% of the Total Exposure Amount, "Required
Lenders" shall mean, at any time, at least two Lenders which, collectively,
hold a majority of the Commitments or a majority of the Total Exposure Amount,
as applicable.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Responsible Officer" means each and any of the Chief Executive
Officer, Chief Financial Officer, Treasurer or General Counsel of the Borrower.
"Restricted Payment" is defined in Section 7.2.6.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" is defined in Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $100,000,000,
as such amount may be reduced from time to time pursuant to Section 2.2, 8.2 or
8.3.
"Revolving Note" means a promissory note of the Borrower payable to
any Lender, substantially in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time in
accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding
Revolving Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission.
"Secured Party" means, as the context may require, any Lender, the
Issuer, any Agent, each counterparty to a Rate Protection Agreement that is (or
at the time such Rate Protection Agreement was entered into, was) a Lender or
an Affiliate thereof, each counterparty to a Cash Management Agreement that is
a Lender or an Affiliate thereof, and, in each case, each of their respective
successors and permitted transferees and assigns.
"Security Agreement" means the Security Agreement executed and
delivered by an Authorized Officer of the Borrower and each Guarantor party
thereto pursuant to Section 5.1.6, substantially in the form of Exhibit F
hereto, as amended, supplemented, amended and restated or otherwise modified.
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"Senior Note Documents" shall mean and include each of the documents
and other agreements entered into (including the Senior Note Indenture and any
guaranty or guaranties relating thereto) relating to the issuance by the
Borrower of the Senior Notes, as in effect on the date of the initial Credit
Extension (to the extent thereof) and as the same may be entered into, modified,
supplemented or amended from time to time pursuant to the terms hereof and
thereof.
"Senior Note Indenture" means the Indenture entered into by and
between the Borrower and State Street Bank & Trust Company, as trustee
thereunder, as in effect on the date hereof and as the same may be amended or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Senior Notes" means the Borrower's 9 1/2% Senior Notes due February
15, 2005, as in effect on the date hereof and as the same may be amended or
otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Stated Amount" means on any date and with respect to any Letter of
Credit, the total amount then available to be drawn under such Letter of
Credit.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means February 28, 2001.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50%
of the outstanding securities (or other ownership interest) having ordinary
voting power to elect the board of directors, managers or other voting members
of the governing body of such corporation, limited liability company,
partnership or other entity (irrespective of whether at the time securities (or
other ownership interest) of any other class or classes of such corporation,
limited liability company, partnership or other entity shall or might have
voting power upon the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person. Unless the context otherwise specifically requires, the term
"Subsidiary" shall be a reference to a Subsidiary of the Borrower.
"Subsidiary Collateral Document" means any Subsidiary Guaranty, the
Pledge Agreement or the Security Agreement, in each case as amended,
supplemented or otherwise modified.
"Subsidiary Guaranty" means any subsidiary guaranty executed and
delivered by an Authorized Officer of a U.S. Subsidiary of the Borrower
pursuant to the terms of this Agreement, substantially in the form of Exhibit H
hereto, as amended, supplemented, amended and restated or otherwise modified.
"Swing Line Account Agreement" shall mean the Financial Management
Account Investment/Commercial Loan Access Agreement, a copy of which, as in
effect on the date hereof, is attached hereto as Exhibit L, between the
Borrower and the Swing Line Lender, as amended, modified, supplemented or
replaced from time to time with the approval of the Required Lenders.
"Swing Line Lender" means Wachovia, in its capacity as Swing Line
Lender hereunder.
"Swing Line Loan" is defined in of Section 2.1.2.
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"Swing Line Loan Commitment" is defined in of Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any date, $7,500,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Borrower payable to
the Swing Line Lender, in the form of Exhibit A-2 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 10.4.
"Taxes" is defined in Section 4.6.
"Total Exposure Amount" means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the
aggregate amount of all Letter of Credit Outstandings and the unfunded amount
of the Commitments.
"Total Indebtedness" means, on any date, the aggregate amount (without
duplication) of (x) the outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries that appears on the consolidated balance sheet of
the Borrower and its Subsidiaries as of such date, plus (y) all Indebtedness of
the Borrower and its Subsidiaries in respect of letters of credit (including
Letters of Credit), other than any portion of such letters of credit which has
been cash collateralized.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit B to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
"Transaction" means the execution and delivery of this Agreement and
all other Loan Documents, the execution and delivery of the Senior Note
Indenture, the Issuance of the Notes hereunder, the issuance and purchase of
the Senior Notes, the refinancing of the Bridge Notes and all other
transactions, if any, entered into on the date of the initial Credit Extension
that is related to any of the foregoing.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Unbilled Eligible Accounts" means, for purposes hereof and at any
time of determination, any amount receivable owing to the Borrower or any
Guarantor arising from the rendering of services in the ordinary course of
business by the Healthcare Services Business as to which (i) such amount
receivable would be an Eligible Account hereunder but for the fact that the
Borrower or such Guarantor, as the case may be, has not yet invoiced the
Account Debtor for such rendering of services, (ii) no more than 90 days have
elapsed since the time of the rendering of such services giving rise to such
amount receivable, (iii) the
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Borrower or such Guarantor, as the case may be, which has rendered such
services was, at the time such services were rendered, a member of the
Healthcare Services Business and (iv) the Borrower has, at all times, recorded
and recognized such amount receivable on its books and records in a manner no
less conservative than that as in effect on the Effective Date.
"United States" or "U.S." means the United States of America, the
fifty states thereof and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary that is incorporated or
organized under the laws of the United States or a state thereof or the
District of Columbia.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wachovia" is defined in the preamble.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"wholly owned" means any Subsidiary all of the outstanding common
stock (or similar equity interest) of which (other than any director's
qualifying shares or investments by foreign nationals mandated by applicable
laws) is owned directly or indirectly by the Borrower.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document and
the Disclosure Schedule.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, and all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, in accordance with,
those generally accepted accounting principles as in effect from time to time
("GAAP"); provided that (i) nothing herein shall prevent or restrict the
Borrower from making the election described in the proviso to the definition of
"Net Income", and (ii) if, after the date hereof, there is any change in GAAP
as applied in the preparation of the Borrower's financial statements for the
Fiscal Year ended December 31, 1997, as filed with the SEC on Form 10-K, then,
until such time as replacement covenants reflecting such change in GAAP are
negotiated and agreed upon (which negotiations each party hereto hereby agrees
to enter into in good faith, unless such parties agree that no replacement
covenants are necessary), the Borrower's compliance with the financial
covenants set forth herein shall be based on GAAP as in effect as of the date
hereof or such later date as the parties have mutually agreed upon. Unless
otherwise expressly provided, all financial covenants and defined financial
terms shall be computed on a consolidated basis for the Borrower and its
Subsidiaries, in each case without duplication.
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement, (i) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to its Revolving Loan Commitment, (ii) the Swing
Line Lender agrees to make Swing Line Loans pursuant to its Swing Line Loan
Commitment, and (iii) the Issuer agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each Lender severally agrees that it will
purchase participation interests in such Letters of Credit pursuant to Section
2.6.1., in each case as described in more detail in this Section 2.1.
SECTION 2.1.1. Revolving Loan Commitments. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Commitment Termination Date, each Lender will make loans (relative to such
Lender, its "Revolving Loans") to the Borrower equal to such Lender's
Percentage of the aggregate amount of the Revolving Loan Borrowing requested by
the Borrower to be made on such day. On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow the
Loans. No amounts paid or prepaid with respect to any Revolving Loan
outstanding after the Commitment Termination Date may be reborrowed.
SECTION 2.1.2. Swing Line Loan Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Commitment Termination Date, the Swing Line Lender will make loans (each a
"Swing Line Loan") to the Borrower equal to the principal amount of the Swing
Line Loan requested by the Borrower to be made on such day. The Commitment of
the Swing Line Lender described in this Section is herein referred to as its
"Swing Line Loan Commitment". On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow Swing
Line Loans.
SECTION 2.1.3. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Commitment Termination Date, the Issuer will (i) issue one or more standby
letters of credit (a "Letter of Credit") for the account of the Borrower in the
Stated Amount requested by the Borrower on such day, or (ii) extend the Stated
Expiry Date of any existing Letter of Credit previously issued hereunder to a
date not later than the earlier of (x) unless such Letter of Credit is cash
collateralized in a manner reasonably satisfactory to the Issuer, the
Commitment Termination Date and (y) one year from the date of such extension.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to make any Revolving Loan if, after
applying the proceeds thereof, the aggregate outstanding principal amount (i)
of all Loans of all Lenders, together with the aggregate amount of all Letter
of Credit Outstandings, would exceed the lesser of (x) the then existing
Commitment Amount and (y) the then applicable Borrowing Base Amount, (ii) of
all Revolving Loans of such Lender, together with such Lender's Percentage of
the aggregate amount of all Letter of Credit Outstandings and Swing Line Loans
outstanding, would exceed such Lender's Percentage of the lesser of (x) the
then existing Commitment Amount and (y) the then applicable Borrowing Base
Amount, or (iii) in the case of the Swing Line Lender, of all Swing Line Loans
would exceed the Swing Line Loan Commitment Amount. It is understood and agreed
that, for purposes of determining compliance herewith, the Lenders shall rely
upon the Borrowing Request delivered in
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respect of any Revolving Loan, and the Administrative Agent shall not be
responsible or liable for monitoring compliance with the Borrowing Base Amount
or Swing Line Loan Amount for purposes of clause (ii) or (iii) hereof.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue, extend or renew any
Letter of Credit if, after giving effect thereto, (a) the aggregate amount of
all Letter of Credit Outstandings would exceed the Letter of Credit Commitment
Amount or (b) the sum of the aggregate amount of all Letter of Credit
Outstandings plus the aggregate principal amount of all Loans then outstanding
would exceed the lesser of (x) the Commitment Amount and (y) the then
applicable Borrowing Base Amount.
SECTION 2.2. Reduction of the Commitment Amount. The Borrower may,
from time to time on any Business Day prior to the Commitment Termination Date,
voluntarily reduce any Commitment Amount on the Business Day so specified by
the Borrower; provided, however, that all such reductions shall require at
least one Business Day's prior notice to the Administrative Agent and be
permanent, and any partial reduction of any Commitment Amount shall be in a
minimum amount of $1,000,000 and in an integral multiple of $500,000.
SECTION 2.3. Borrowing Procedures, etc. Revolving Loans (exclusive
of Swing Line Loans) shall be made by the Lenders in accordance with Section
2.3.1 below, and Swing Line Loans shall be made by the Swing Line Lender in
accordance with Section 2.3.2 below:
SECTION 2.3.1. Revolving Loans. By delivering a Borrowing Request to
the Administrative Agent on or before noon, New York time, on a Business Day,
the Borrower may from time to time irrevocably request, not less than one
Business Day's notice in the case of Base Rate Loans, or three Business Days'
notice in the case of LIBO Rate Loans, and in either case not more than seven
Business Days' notice, that a Borrowing be made, in the case of LIBO Rate
Loans, in a minimum amount of $1,000,000 and an integral multiple of $100,000,
in the case of Base Rate Loans, in a minimum amount of $1,000,000 and an
integral multiple of $100,000 or, in either case, in the unused amount of the
Revolving Loan Commitment Amount; provided, however, that all initial Loans
shall be made as Base Rate Loans. No Borrowing Request shall be required, and
the minimum aggregate amounts specified under this Section 2.3.1 shall not
apply, in the case of Refunding Loans made pursuant to Section 2.3.2. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 11:00 a.m. (Atlanta, Georgia
time) on such Business Day each Lender that has a Commitment to make the Loans
being requested shall deposit with the Administrative Agent same day funds in
an amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the Borrower by wire transfer or credit entry to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to make
any Loan shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. Swing Line Loans.
(a) So long as Wachovia is the Swing Line Lender, the Commitment
Termination Date shall not have occurred and the Swing Line Account Agreement
shall not have been terminated, all Swing Line Loans shall be requested or
deemed requested by the Borrower pursuant to the Swing Line Account Agreement
and
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all Borrowings of Swing Line Loans under this Agreement shall be made in
accordance with the Swing Line Account Agreement. In the event Wachovia ceases
to be the Swing Line Lender or the Swing Line Loan Account Agreement has been
terminated, so long as the Commitment Termination Date shall not have occurred,
Swing Line Loans may be requested by same day telephonic notice (followed by
written confirmation no later than the next succeeding Business Day) on or
before 12:00 noon on the Business Day such Swing Line Loan is requested to be
made; provided that all such Swing Line Loans shall be made in a minimum
principal amount of $10,000 and an integral multiple of at least $10,000. All
Swing Line Loans shall be made and maintained as Base Rate Loans and shall not
be entitled to be converted into LIBO Rate Loans. The proceeds of each Swing
Line Loan shall be made available to the Borrower as provided in the Swing Line
Account Agreement.
(b) If (i) for any period of five consecutive Business Days, Swing
Line Loans shall be outstanding in an aggregate principal amount in excess of
$1,000,000 or (ii) any Default (other than a Default of the nature set forth in
Section 8.1.9) shall occur and be continuing, each Lender shall be obligated,
without any further action or notice, to make a Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage of the aggregate principal amount of all such Swing Line Loans then
outstanding (such new Revolving Loan being herein referred to as a "Refunding
Loan"); provided, however, that (x) for purposes of clause (i) above, the
Borrower shall be obligated to give notice to the Administrative Agent on or
before the first Business Day following any such period of five consecutive
Business Days when the aggregate outstanding principal amount of Swing Line
Loans has exceeded $1,000,000, which notice shall be accompanied by a Borrowing
Request requesting a Borrowing of Refunding Loans as required above, and (y) no
Lender shall be required to make any Refunding Loan if, after giving effect
thereto, (A) the sum of all outstanding Refunding Loans made by such Lender
would exceed such Lender's Percentage of the Swing Line Loan Commitment Amount
or (B) the sum of all Swing Line Loans and Revolving Loans made by such Lender,
plus such Lender's Percentage of the aggregate amount of all Letter of Credit
Outstandings, would exceed such Lender's Percentage of the then existing
Revolving Loan Commitment Amount. The Administrative Agent shall promptly
notify the other Lenders of the Borrowing Request for Refunding Loans described
above, and, on or before 10:00 a.m. (Atlanta, Georgia time) on the first
Business Day following such notice to the Lenders by the Administrative Agent,
each Lender shall deposit in an account specified by the Swing Line Lender the
amount required pursuant to the previous sentence in same day funds and such
funds shall be applied by the Swing Line Lender to repay the outstanding Swing
Line Loans. At the time the aforementioned Lenders make the above referenced
Refunding Loans, the Swing Line Lender shall be deemed to have made, a
Revolving Loan in an amount equal to the Swing Line Lender's Percentage of the
aggregate principal amount of the outstanding Swing Line Loans. Upon the making
(or deemed making, in the case of the Swing Line Lender) of any Revolving Loans
pursuant to this clause (b), the amount so funded shall become outstanding
under such Lender's Revolving Note and shall no longer be owed under the Swing
Line Note. All interest payable with respect to any Revolving Loans made (or
deemed made, in the case of the Swing Line Lender) pursuant to this clause (b)
shall be appropriately adjusted to reflect the period of time during which the
Swing Line Lender had outstanding Swing Line Loans in respect of which such
Revolving Loans were made.
Any term or provision of this Agreement to the contrary
notwithstanding, the parties hereto agree that:
(i) in the event the Borrower fails to give timely notice as
provided in clause (x) above and Refunding Loans are not made, as
provided above, to refund Swing Lines Loans which have remained
outstanding in an aggregate principal amount in excess of $1,000,000
for five consecutive
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Business Days (the date which is the earlier of (A) the Business Day
following thedate such notice is ultimately given and (B) the date
such Refunding Loans required pursuant to this clause (b) are made,
being herein referred to as the "Refunding Date"), then each Lender,
other than the Swing Line Lender, shall be entitled to receive (in
addition to all other amounts payable to such Lender hereunder) the
Additional Compensation Amount; and
(ii) the Additional Compensation Amount shall be payable five
Business Days after demand thereof by any Lender entitled thereto; it
being hereby agreed that the Borrower's obligation to pay such
Additional Compensation Amount shall be the only obligation of the
Borrower for purposes of this clause (b), and the Borrower's failure
to provide such notice described above shall not, in and of itself,
constitute a Default or Event of Default hereunder or result in any
other liability.
(c) If, at any time prior to the making of Revolving Loans to replace
any outstanding Swing Line Loans pursuant to clause (b) above, any Default of
the nature set forth in Section 8.1.9 shall have occurred, each Lender with a
Revolving Loan Commitment (other than the Swing Line Lender) irrevocably agrees
that it will, at the request of the Swing Line Lender and upon notice from the
Administrative Agent, purchase an undivided participation interest in all such
Swing Line Loans in an amount equal to its Percentage of the aggregate
outstanding amount of such Swing Line Loans and transfer immediately to an
account identified by the Swing Line Lender, in immediately available funds,
the amount of its participation. The Swing Line Lender will deliver to each
such Lender, promptly following receipt of such funds, a participation
certificate, dated the date of receipt of such funds and in the amount of such
Lender's participation if requested to do so by such Lender.
(d) The Borrower expressly agrees that, in respect of each Lender's
funded participation interest in any Swing Line Loan, such Lender shall be
deemed to be in privity of contract with the Borrower and have the same rights
and remedies against the Borrower under the Loan Documents as if such funded
participation interest in such Swing Line Loan were a Revolving Loan.
(e) Each Lender's obligation (in the case of Lenders with a Revolving
Loan Commitment) to make Revolving Loans or purchase participation interests in
Swing Line Loans, as contemplated by clause (b) or (c) above, shall be absolute
and unconditional and without recourse to the Swing Line Lender and shall not
be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect, (iii) the acceleration or maturity of any
Loans or the termination of any Commitment after the making of any Swing Line
Loan, (iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Obligor or any Lender, or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before noon,
Atlanta, Georgia time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice in the case of
Base Rate Loans, or three Business Days' notice in the case of LIBO Rate Loans,
and in either case not more than seven Business Days' notice, that all, or any
portion in an aggregate minimum amount of $1,000,000 and an integral multiple
of $100,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans
or be, in the case of LIBO Rate Loans, converted into Base Rate Loans or
continued as LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three
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Business Days (but no more than seven Business Days) before the last day of the
then current Interest Period with respect thereto, such LIBO Rate Loan shall,
on such last day, automatically convert to a Base Rate Loan); provided,
however, that (x) each such conversion or continuation shall be pro rated among
the applicable outstanding Loans of all Lenders that have made such Loans, and
(y) no portion of the outstanding principal amount of any Loans may be
continued as, or be converted into, LIBO Rate Loans when any Event of Default
has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower and each Lender hereby consents and agrees that, for purposes of any
determination to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall
be conclusively assumed that each Lender elected to fund all LIBO Rate Loans by
purchasing Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the
Administrative Agent an Issuance Request on or before noon, Atlanta, Georgia
time, on a Business Day, the Borrower may from time to time irrevocably request
on not less than three nor more than ten Business Days' notice, in the case of
an initial issuance of a Letter of Credit and not less than three Business
Days' prior notice, in the case of a request for the extension of the Stated
Expiry Date of a standby Letter of Credit, that the Issuer issue, or extend the
Stated Expiry Date of, as the case may be, an irrevocable Letter of Credit in
such form as may be requested by the Borrower and approved by the Issuer. Each
Letter of Credit (including any Letter of Credit which has had its Stated
Expiry Date extended) shall by its terms be stated to expire on a date (its
"Stated Expiry Date") no later than the earlier to occur of (i) unless cash
collateralized in a manner reasonably satisfactory to the Issuer, the
Commitment Termination Date or (ii) (unless otherwise agreed to by the Issuer,
in its sole discretion) one year from the date of its issuance or the extension
of its Stated Expiry Date. The Issuer will make available to the beneficiary
thereof the original of the Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than such Issuer) shall be deemed to have
irrevocably purchased, to the extent of its Percentage to make Loans, and the
Issuer shall be deemed to have irrevocably granted and sold to such Lender, a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation with respect thereto), and such
Lender shall, to the extent of its Percentage to make Loans, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrower in
accordance with Section 2.6.3. In addition, such Lender shall, to the extent of
its Percentage to make Loans, be entitled to receive a ratable portion of the
Letter of Credit fees payable pursuant to Section 3.3.3 with respect to each
Letter of Credit (other than the issuance fees payable to an Issuer of such
Letter of Credit pursuant to the last sentence of Section 3.3.3) and of
interest payable pursuant to Section 3.2 with respect to any Reimbursement
Obligation. To the extent that any Lender has reimbursed the Issuer for a
Disbursement, such Lender shall be entitled to receive its ratable portion of
any amounts subsequently received (from the Borrower or otherwise) in respect
of such Disbursement.
SECTION 2.6.2. Disbursements. The Issuer will notify the Borrower and
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by the Issuer, together with notice of
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the date (the "Disbursement Date") such payment shall be made (each such
payment, a "Disbursement"). Subject to the terms and provisions of such Letter
of Credit and this Agreement, the Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 11:00 a.m.,
Atlanta, Georgia time, on the fourth Business Day following the Disbursement
Date, the Borrower will reimburse the Administrative Agent, for the account of
the Issuer, for all amounts which Issuer has disbursed under such Letter of
Credit, together with interest thereon at a rate per annum equal to the rate
per annum then in effect for Base Rate Loans (with the then Applicable Margin
for Loans accruing on such amount) pursuant to Section 3.2 for the period from
the Disbursement Date through the date of such reimbursement. Without limiting
in any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
Issuer on the terms set forth herein for each Disbursement of a Letter of
Credit, and it shall be deemed to be the obligor for purposes of each such
Letter of Credit issued hereunder.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon), and, upon the
failure of the Borrower to reimburse the Issuer, each Lender's obligation under
Section 2.6.1 to reimburse the Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Lender, as the case may be, may
have or have had against the Issuer or any Lender, including any defense based
upon the failure of any Disbursement to conform to the terms of the applicable
Letter of Credit (if, in such Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided, however, that
after paying in full its Reimbursement Obligation hereunder, nothing herein
shall adversely affect the right of the Borrower or such Lender, as the case
may be, to commence any proceeding against the Issuer for any wrongful
Disbursement made by the Issuer under a Letter of Credit as a result of acts or
omissions constituting gross negligence or wilful misconduct on the part of
such Issuer or to the extent such Disbursement was otherwise wrongful under the
UCC.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during
the continuation of any Event of Default under Section 8.1.9 or upon
notification by the Administrative Agent (acting at the direction of the
Required Lenders) to the Borrower of its obligations under this Section,
following the occurrence and during the continuation of any other Event of
Default, (i) an amount equal to that portion of all Letters of Credit
Outstandings attributable to the then aggregate amount which is undrawn and
available under all Letters of Credit issued and outstanding shall, without
demand upon or notice to the Borrower or any other Person, be deemed to have
been paid or disbursed by the Issuers of such Letters of Credit
(notwithstanding that such amount may not in fact have been paid or disbursed),
and (ii) the Borrower shall be immediately obligated to reimburse the Issuers
for the amount deemed to have been so paid or disbursed by such Issuers.
Amounts payable by the Borrower pursuant to this Section shall be deposited in
cash in immediately available funds with the Administrative Agent and held as
collateral security for the Reimbursement Obligations. When all Defaults giving
rise to the deemed disbursements under this Section have been cured or waived,
the Administrative Agent shall return to the Borrower all amounts then on
deposit with the Administrative Agent pursuant to this Section which have not
been applied to the satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower, each
other Obligor and, to the extent set forth in Section 2.6.1, each Lender shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof. No Issuer (except to the extent of its own gross
negligence or
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wilful misconduct or to the extent such Disbursement was otherwise wrongful
under the UCC) shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of a Letter of Credit, even if
it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged, (ii) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason, (iii) failure of the
beneficiary to comply fully with conditions required in order to demand payment
under a Letter of Credit, (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, or (v) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter of
Credit. None of the foregoing shall affect, impair or prevent the vesting of
any of the rights or powers granted to any Issuer or any Lender hereunder. In
furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful misconduct or to the extent such
Disbursement was otherwise wrongful under the UCC) shall be binding upon each
Obligor and each such Secured Party, and shall not put such Issuer under any
resulting liability to any Obligor or any Secured Party, as the case may be.
SECTION 2.7. Notes, etc. Each Lender's Revolving Loans under its
Commitment shall be evidenced by a Revolving Note payable to the order of such
Lender in a maximum principal amount equal to such Lender's Percentage of the
original applicable Commitment Amount, and the Swing Line Lender's Swing Line
Loans under its Swing Line Loan Commitment shall be evidenced by a Swing Line
Note payable to the order of the Swing Line Lender in a maximum principal
amount equal to the Swing Line Loan Commitment. The Borrower hereby irrevocably
authorizes each Lender (including the Swing Line Lender) to make (or cause to
be made) appropriate notations on the grid attached to such Lender's Revolving
Note or the Swing Line Note, as the case may be (or on any continuation of such
grid), which notations, if made, shall be prima facie evidence of (absent
manifest error), inter alia, the date of, the outstanding principal of, and the
type of interest rate and Interest Period applicable to the Loans evidenced
thereby; provided, however, that the failure of any Lender to make any such
notations shall not limit or otherwise affect any Obligations of any Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date.
Prior thereto, payments and prepayments of Loans shall or may be made as set
forth below.
(a) From time to time on any Business Day, the Borrower may
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans, provided, however, that (i) with
respect to any Loans other than Swing Line Loans, (x) any such
prepayment shall be made pro rata among Loans of the same type and, if
applicable, having the same Interest Period, (y) all such voluntary
prepayments shall require at least one Business Day's notice in the
case
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of Base Rate Loans, three Business Days' notice in the case of LIBO
Rate Loans, but no more than seven Business Days' prior written notice
in the case of any Loans, in each case in writing to the
Administrative Agent, and (z) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans, in an aggregate minimum
amount of $1,000,000 and an integral multiple of $100,000 and, in the
case of Base Rate Loans, in an aggregate minimum amount of $1,000,000
and an integral multiple of $100,000; and (ii) unless otherwise
provided in the Swing Line Loan Agreement, (x) Swing Line Loans may be
voluntarily prepaid at any time, followed by subsequent telephonic
notice to the Swing Lender on or before 3:00 p.m., Atlanta, Georgia
time, no later than the day following such prepayment (such notice to
be confirmed in writing if requested by the Swing Line Lender) and (y)
any such voluntary partial prepayment shall be in a minimum aggregate
amount of, and an integral multiple of, $10,000 or the aggregate
principal amount of all outstanding Swing Line Loans.
(b) On each date when the sum of (i) the aggregate
outstanding principal amount of all Loans and (ii) the aggregate
amount of all Letter of Credit Outstandings exceeds the lesser of (x)
the Revolving Loan Commitment Amount (as it may be reduced from time
to time, including pursuant to Section 2.2 and Section 3.1.2), and (y)
the then applicable Borrowing Base Amount, the Borrower shall make a
mandatory prepayment of all the Loans and, if necessary, give cash
collateral to the Administrative Agent pursuant to an agreement
satisfactory to the Administrative Agent to collateralize Letter of
Credit Outstandings, in an aggregate amount equal to such excess.
(c) The Borrower shall, not later than three Business Days
following the receipt of any Net Debt Proceeds by the Borrower or any
of its Subsidiaries, deliver to the Administrative Agent a calculation
of the amount of such Net Debt Proceeds and make a mandatory
prepayment of the Loans in an amount equal to 100% of such Net Debt
Proceeds to be applied as set forth in Section 3.1.2; provided, that
in no event shall any prepayment be required pursuant to this clause
(c) in an amount less than $1,000,000 until three Business Days after
the date on which the aggregate amount of all prepayments that, absent
this proviso, would have been required to have been made by this
clause (c) (and which in fact have not yet been made) is at least
$1,000,000.
(d) The Borrower shall, not later than three Business Days
following the receipt of any Net Equity Proceeds by the Borrower or
any of its Subsidiaries, deliver to the Administrative Agent a
calculation of the amount of such Net Equity Proceeds and make a
mandatory prepayment of the Loans in an amount equal to 50% of such
Net Equity Proceeds to be applied as set forth in Section 3.1.2;
provided that (i) this clause (d) shall not be applicable to any Net
Equity Proceeds arising from the issuance or sale of any stock,
warrants or options to employees, officers or directors of the
Borrower or any of its Subsidiaries pursuant to any compensation
arrangement, employee benefit plan or similar arrangement or the
exercise by any such employee, officer, director, plan or arrangement
of any such warrants or options; and (ii) in no event shall any
prepayment be required pursuant to this clause (d) in an amount less
than $1,000,000 until three Business Days after the date on which the
aggregate amount of all prepayments that, absent this clause (ii),
would have been required to have been made by this clause (d) (and
which in fact have not yet been made) is at least $1,000,000.
(e) The Borrower shall, following the receipt by the Borrower
or any of its Subsidiaries of any Casualty Proceeds in excess of
$5,000,000 (individually or in the aggregate (when taken together with
Net Disposition Proceeds) over the course of a Fiscal Year), deliver
to the Administrative Agent a calculation of the amount of such
Casualty Proceeds and make a mandatory prepayment of the
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Loans in an amount equal to 100% of such Casualty Proceeds within 60
days of the receipt thereof to be applied as set forth in Section
3.1.2; provided, however, that no mandatory prepayment on account of
Casualty Proceeds shall be required under this clause if the Borrower
informs the Agents in writing no later than 60 days following the
occurrence of the Casualty Event resulting in such Casualty Proceeds
of its or such Subsidiary's good faith intention either to (x) apply
such Casualty Proceeds to the rebuilding or replacement of the
damaged, destroyed or condemned assets or property, or (y) otherwise
reinvest such Casualty Proceeds, in a manner permitted by this
Agreement, in the business of the Borrower and its Subsidiaries
(including pursuant to clauses (e) and (j) of Section 7.2.5), and the
Borrower or such Subsidiary in fact so uses such Casualty Proceeds
within 365 days following the receipt of such Casualty Proceeds, with
the amount of such Casualty Proceeds unused after such 365-day period
being applied to the prepayment of the Loans pursuant to Section
3.1.2; provided, further, however, that (i) at any time when any Event
of Default shall have occurred and be continuing, all such Casualty
Proceeds (together with Net Disposition Proceeds not applied as
provided in clause (f) below) shall be deposited in an account of the
Borrower maintained with the Administrative Agent to pay for such
rebuilding, replacement or reinvestment whenever no Event of Default
is then continuing or except as otherwise agreed to by the Agents for
disbursement at the request of the Borrower or such Subsidiary, as the
case may be, it being agreed that all amounts so deposited shall be
disbursed to the Borrower at such time as no Event of Default has
occurred and is continuing, or (ii) if all such Casualty Proceeds
(together with Net Disposition Proceeds not applied as provided in
clause (f) below) aggregating in excess of $5,000,000 have not yet
been applied either (x) to the repayment of Loans, (y) as described in
the notice required above, or (z) in accordance with clause (f) below,
all such Casualty Proceeds and Net Disposition Proceeds shall be
deposited in an account of the Borrower maintained with the
Administrative Agent for disbursement at the request of the Borrower
or such Subsidiary, as the case may be, to be used for the purpose(s)
set forth in such written notice(s) or, at the election of the
Borrower, to repay Loans; provided, further that in no event shall any
prepayment be required pursuant to this clause (e) in an amount less
than $5,000,000 or any unused Casualty Proceeds aggregating less than
$5,000,000 until three Business Days after the end of any Fiscal
Quarter containing a date on which the aggregate amount of all
prepayments that, absent this proviso and the similar proviso to
clause (f) below, would have been required to have been made by this
clause (e) or such clause (f) (and which in fact have not yet been
made) is in excess of $5,000,000.
(f) The Borrower shall, following the receipt by the Borrower
or any of its respective Subsidiaries of any Net Disposition Proceeds
in excess of $5,000,000 (individually or in the aggregate (when taken
together with Casualty Proceeds) over the course of a Fiscal Year),
deliver to the Administrative Agent a calculation of the amount of
such Net Disposition Proceeds and make a mandatory prepayment of the
Loans in an amount equal to 100% of such Net Disposition Proceeds
within five Business Day of the receipt thereof to be applied as set
forth in Section 3.1.2; provided, however, that no mandatory
prepayment on account of Net Disposition Proceeds shall be required
under this clause if the Borrower informs the Agents in writing no
later than five Business Day following the receipt of such Net
Disposition Proceeds of its or such Subsidiary's good faith intention
to reinvest such Net Disposition Proceeds, in a manner permitted by
this Agreement, in the business of the Borrower and its Subsidiaries
(including pursuant to clauses (e) and (j) of Section 7.2.5), and the
Borrower or such Subsidiary in fact so uses such Net Disposition
Proceeds to replace such assets or property within 365 days of the
receipt of such Net Disposition Proceeds, with the amount of such Net
Disposition Proceeds unused after such 365-day period being applied to
the Loans pursuant to Section 3.1.2; provided, further, however, that
(i) at any time when any Event of
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Default shall have occurred and be continuing, all such Net
Disposition Proceeds (together with Casualty Proceeds not applied as
provided in clause (e) above) shall be deposited in an account of the
Borrower maintained with the Administrative Agent to pay for such
reinvestment whenever no Event of Default is then continuing or except
as otherwise agreed to by the Agent for disbursement at the request of
the Borrower or such Subsidiary, as the case may be, it being agreed
that all amounts so deposited shall be disbursed to the Borrower at
such time as no Event of Default has occurred and is continuing, or
(ii) if all such Net Disposition Proceeds (together with Casualty
Proceeds not applied as provided in clause (e) above) aggregating in
excess of $5,000,000 have not yet been applied to either (x) the
repayment of Loans, (y) as described in the notice required above, or
(z) in accordance with clause (e) above, all such Net Disposition
Proceeds and Casualty Proceeds shall be deposited in an account of the
Borrower maintained with the Administrative Agent for disbursement at
the request of the Borrower or such Subsidiary, as the case may be, to
be used for the purpose(s) set forth in such written notice(s) or, at
the election of the Borrower, to repay Loans; provided, further that
in no event shall any prepayment be required pursuant to this clause
(f) in an amount less than $5,000,000 or any unused Net Disposition
Proceeds aggregating less than $5,000,000 until three Business Days
after the end of any Fiscal Quarter containing a date on which the
aggregate amount of all prepayments that, absent this proviso and the
similar proviso to clause (e) above, would have been required to have
been made by this clause (f) or such clause (e) (and which in fact
have not yet been made) is in excess of $5,000,000.
(g) The Borrower shall, on each date when any reduction in
the Revolving Loan Commitment Amount shall become effective, make a
mandatory prepayment of Revolving Loans and Swing Line Loans and (if
necessary) deposit with the Administrative Agent cash collateral for
Letter of Credit Outstandings in an aggregate amount equal to the
excess, if any, of the sum of (i) the aggregate outstanding principal
amount of all Revolving Loans and Swing Line Loans and (ii) the
aggregate amount of all Letter of Credit Outstandings over the
Revolving Loan Commitment Amount as so reduced.
(h) The Borrower shall, immediately upon the occurrence of
the Stated Maturity Date of any Loans or Obligations, whether by way
of acceleration pursuant to Section 8.2 or 8.3 or otherwise, repay all
such outstanding Loans and other Obligations, unless, pursuant to
Section 8.3, only a portion of all Loans and other Obligations are so
accelerated (in which case only the portion so accelerated shall be so
prepaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
this Section 3.1.1 shall cause a reduction in the Revolving Loan Commitment
Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application. Other than pursuant to the Swing Line
Account Agreement, each prepayment or repayment of the principal of the Loans
shall be applied, to the extent of such prepayment or repayment, first, to the
principal amount thereof being maintained as Base Rate Loans, and second, to
the principal amount thereof being maintained as LIBO Rate Loans; provided,
that mandatory prepayments of LIBO Rate Loans made pursuant to Section 3.1.1,
if not made on the last day of the Interest Period with respect thereto, shall
be prepaid subject to the provisions of Section 4.4 (together with a payment of
all accrued interest).
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SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Each Base Rate Loan shall accrue interest on the
unpaid principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but excluding the
date such Loan is repaid or converted to a LIBO Rate Loan at a rate per annum
equal to the sum of the Alternate Base Rate for such day plus the Applicable
Margin for such Loan on such day. Each LIBO Rate Loan shall accrue interest on
the unpaid principal amount thereof for each day from and including the first
day of the Interest Period applicable thereto to but excluding the last day of
such Interest Period or, if different, the date such Loan is repaid or
converted to a Base Rate Loan at a rate per annum equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable Margin for
such Loan on such day.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan or Reimbursement Obligation is due and payable (whether on
the Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower shall pay, but only to the extent permitted by law, interest (after as
well as before judgment) on such amounts that are overdue at a rate per annum
equal to the Alternate Base Rate plus the Applicable Margin (as then in effect)
plus a margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the principal amount so
paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the initial Credit Extension hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are
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suspended by reason of the Borrower's inability to satisfy any condition of
Article V) commencing on the Effective Date and continuing through but
excluding the Commitment Termination Date, a commitment fee in an amount equal
to the Applicable Commitment Fee, in each case on such Lender's Percentage of
the sum of the average daily unused portion of the applicable Commitment
Amount, whether or not then available. All commitment fees payable pursuant to
this Section shall be calculated on a year comprised of 365 or 366 days (as
applicable) and payable by the Borrower in arrears on the Effective Date and
thereafter on each Quarterly Payment Date, commencing with the first Quarterly
Payment Date following the Effective Date, and on the Commitment Termination
Date. The making of Swing Line Loans by the Swing Line Lender shall not
constitute usage under the Commitment for the purpose of calculating the
commitment fees to be paid by the Borrower to the Lenders (including the Swing
Line Lender) pursuant to Section 3.3.1; provided, that Letter of Credit
Outstandings shall constitute usage for such purpose.
SECTION 3.3.2. Agent's Fee. The Borrower agrees to pay to each Agent,
for its own account, the fees, if any, payable to such Agent pursuant to the
Fee Letters in the amounts and on the dates set forth therein.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to
(a) the Administrative Agent, for the pro rata account of the
Issuer and each other Lender that has a Revolving Loan Commitment, a
Letter of Credit fee for each day (other than the last day) on which
there shall be any Letters of Credit outstanding in an amount equal to
the product of (i) a rate per annum equal to the then Applicable
Margin for Revolving Loans maintained as LIBO Rate Loans multiplied by
(ii) the Stated Amount of each such Letter of Credit; and
(b) the Issuer (i) a Letter of Credit fronting fee for each
day (other than the last day) on which there shall be any Letters of
Credit outstanding in an amount equal to 0.25% per annum on the Stated
Amount of each such Letter of Credit, and (ii) from time to time
promptly after demand, the normal issuance, presentation, amendment
and other processing fees, and other standard administrative costs and
charges of the Issuer relating to Letters of Credit as from time to
time in effect and notified to the Borrower.
Fees payable pursuant to this Section shall be payable quarterly in arrears on
each Quarterly Payment Date and on the Revolving Loan Commitment Termination
Date.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Lenders, be conclusive and binding on the Borrower) that the introduction of or
any change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to convert any Loan
into, a LIBO Rate Loan, the obligations of such Lender to make, continue,
maintain or convert any such LIBO Rate Loan shall, upon such determination,
forthwith be suspended until the circumstances causing such suspension no
longer exist, and all outstanding LIBO Rate Loans shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto
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or sooner, if required by such law or assertion. Any Lender so affected shall
give prompt notice thereof the Borrower of such circumstances and the cessation
thereof.
SECTION 4.2. Deposits Unavailable. If no Telerate page (or successor
thereto) shall exist and the Administrative Agent shall have determined that
either (i) Dollar deposits in the relevant amount and for the relevant Interest
Period are not generally available in the London interbank market or (ii) by
reason of circumstances affecting such relevant market, adequate means do not
exist for purposes of ascertaining the interest rate applicable hereunder to
LIBO Rate Loans, then, upon notice from the Administrative Agent to the
Borrower and the Lenders, the obligations of all Lenders under Section 2.3 and
Section 2.4 to make or continue any Loans as, or to convert any Loans into,
LIBO Rate Loans shall forthwith be suspended until the circumstances causing
such suspension no longer exist. The Administrative Agent shall give prompt
notice thereof to the Borrower of such circumstances and the cessation thereof.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. Subject to the terms
hereof, the Borrower agrees to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans as, or of converting (or of
its obligation to convert) any Loans into, LIBO Rate Loans that arise in
connection with any change in, or the introduction, adoption, effectiveness,
interpretation or reinterpretation after the date hereof of, any law or
regulation, directive, guideline, decision or request (whether or not having
the force of law) of any court, central bank, regulator or other governmental
authority, except for such changes with respect to increased capital costs and
taxes, which shall be governed by Sections 4.5 and 4.6, respectively, or
reflected in the LIBO Rate (Reserve Adjusted). Such Lender shall promptly
notify the Administrative Agent and the Borrower in writing of the occurrence
of any such event, such notice to state, in reasonable detail, the reasons
therefor and the additional amount required fully to compensate such Lender for
such increased cost or reduced amount. Such additional amounts which have not
accrued for more than 90 days prior to the date on which such Lender actually
became aware of such additional amounts shall be payable by the Borrower
directly to such Lender within five Business Days of its receipt of such
notice, and such notice shall, in the absence of bad faith or manifest error,
be conclusive and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of (i) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to Section 3.1
or otherwise, (ii) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor, or (iii) any Loans not being continued as,
or converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor, then, upon the written notice of such
Lender to the Borrower (with a copy to the Administrative Agent), the Borrower
shall, within five Business Days of its receipt thereof, pay directly to such
Lender such amount as will (in the reasonable determination of such Lender)
reimburse such Lender for such loss or expense. Such written notice (which
shall include calculations in reasonable detail) shall, in the absence of bad
faith or manifest error, be conclusive and binding on the Borrower. In no event
shall the amount the Borrower is obligated to pay to any Lender pursuant to this
Section exceed the excess, if any, of (i) the amount of interest (exclusive of
any Applicable Margin) which would have accrued on the amount so prepaid or
converted, or not so borrowed, converted or continued, for the period from and
including the date of such event to but excluding that last day of the Interest
Period (or proposed Interest
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Period) for the applicable Loans at the applicable LIBO Rate (or proposed LIBO
Rate) for such Loans over (ii) the amount of interest (as reasonably determined
by such Lender) which would have accrued to such Lender on such amount by
placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market; it being understood that the Borrower shall
not be required to indemnify any Lender for any lost profits.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation of,
any law or regulation, directive, guideline, decision or request (whether or
not having the force of law) of any court, central bank, regulator or other
governmental authority affects or would affect the amount of capital required
or expected to be maintained by any Lender, the Issuer or any Person
controlling such Lender or the Issuer (exclusive, however, of adjustments
reflected in the LIBO Rate (Reserve Adjusted)), and such Lender or the Issuer
determines (in good faith but in its sole and absolute discretion) that the
rate of return on its or such controlling Person's capital as a consequence of
the Commitments, participation in, or the issuance or extension of, any Letter
of Credit or any Loan made, or the Letters of Credit participated in, by such
Lender is reduced to a level below that which such Lender, the Issuer or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender or the Issuer to the Borrower, the Borrower shall immediately pay
directly to such Lender or the Issuer additional amounts which have not accrued
for more than 90 days prior to the date on which such Lender or the Issuer
became aware of such additional amounts sufficient to compensate such Lender,
the Issuer or such controlling Person for such reduction in rate of return. A
statement of such Lender or the Issuer as to any such additional amount or
amounts (including calculations thereof in reasonable detail) shall, in the
absence of bad faith or manifest error, be conclusive and binding on the
Borrower. In determining such amount, such Lender or the Issuer may use any
method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrower of principal of, and
interest on, the Credit Extensions and all other amounts payable hereunder
(including fees) shall be made free and clear of and without deduction for any
present or future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature whatsoever imposed by
any taxing authority, but excluding (i) franchise taxes and taxes imposed on or
measured by any Lender's, Agent's or Issuer's net income or net receipts and
(ii) any present or future income, excise, stamp or franchise taxes and other
taxes, fees, duties, withholdings or other charges of any nature whatsoever
imposed by the United States or any political subdivision in or of the United
States to the extent they are in effect and would apply as of the date any
Person becomes a Lender, Agent or Issuer (but not to the extent imposed as a
result of a change in law, treaties, regulation or an interpretation thereof
occurring after the date hereof), or to the extent imposed as a result of a
change in a Lender's, Agent's or Issuer's circumstances, including without
limitation a change in the residence, place of incorporation, or principal
place of business of such Person or as a result of a change in the branch or
lending office of such Person participating in the transactions set forth
herein (other than a change made at the request of the Borrower), and the
foregoing clauses (i) and (ii) shall include all penalties, interest or
expenses related thereto (such non-excluded items being called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will (x) pay directly to
the relevant authority the full amount required to be so withheld or deducted,
(y) promptly forward to the Administrative Agent an official receipt or other
documentation satisfactory to the Administrative Agent evidencing such payment
to such authority, and (z) pay to the Administrative Agent for the account of
such Lender, Agent or Issuer, as applicable, such additional amount or amounts
as is necessary to ensure that the net amount actually received by such Person
will equal the full amount such Person would have received had
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no such withholding or deduction been required; provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender, Agent or Issuer (A) that is not organized under the laws of the United
States to the extent that such Taxes are imposed on such Lender, Agent or
Issuer, as the case may be, as a result of the failure of such Person to comply
with the requirements of the last paragraph of this Section 4.6, or (B) to the
extent the increase in such amount payable results solely from the Lender's,
Agent's or Issuer's own wilful misconduct or gross negligence. Moreover, if any
Taxes are directly asserted against any Lender, Agent or Issuer with respect to
any payment received by such Person hereunder, such Person may pay such Taxes
and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of any Lender, Agent or Issuer, as applicable, the required receipts or other
required documentary evidence, the Borrower shall indemnify such Lender, Agent
or Issuer, as the case may be, for any incremental Taxes, interest or penalties
that may become payable by any such Person as a result of any such failure.
If any Lender, Agent or Issuer determines in its sole good faith
judgment that it has received a refund (including interest and penalties, if
any) of any Taxes as to which it has been indemnified by the Borrower pursuant
to this Section 4.6, it shall promptly notify the Borrower of such refund and
shall, within 90 days of receipt repay such refund (to the extent of amounts
that have been paid by the Borrower under this Section 4.6 with respect to such
Taxes and not previously reimbursed) to the Borrower and without any interest
(other than the interest, if any, attributable to such refund that is actually
received from the relevant taxing authority), provided that the Borrower, upon
the request of such Lender, Agent or Issuer agrees to return such refunded
amount to such Lender, Agent or Issuer in the event such Person is required to
repay such refund. The Borrower shall return such refund within 30 days after
such Lender, Agent or Issuer provides the Borrower with written notice that it
is required by applicable law to repay such refund to the relevant taxing
authority. Any such amounts returned by the Borrower shall be treated as a
payment subject to the provisions of this Section 4.6. The Borrower
acknowledges that nothing contained in this paragraph shall require any Lender,
Agent or Issuer to make any application for a refund of any Taxes or otherwise
affect its discretion over its fiscal affairs.
Each Lender, Agent or Issuer that is organized under the laws of a
jurisdiction other than the United States shall, prior to the due date of any
payments under this Agreement and thereafter on or about the first scheduled
payment date in each Fiscal Year and at any other time that the Borrower or the
Administrative Agent may reasonably request, execute and deliver to the
Borrower and the Administrative Agent one or more (as the Borrower or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 (or successor forms or documents) or such
other forms or documents, appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender, Agent or
Issuer is exempt from withholding or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes,
each Letter of Credit or any other Loan Document shall be made by the Borrower
to the Administrative Agent for the pro rata account of the Lenders entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 1:00 p.m., New York, N.Y. or Atlanta, Georgia time,
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on the date due, in same day or immediately available funds, to such account in
Atlanta, Georgia as the Administrative Agent shall specify from time to time by
notice to the Borrower. Funds received after that time shall be deemed to have
been received by the Administrative Agent on the next succeeding Business Day.
The Administrative Agent shall promptly remit in same day funds to each Lender,
Agent or Issuer, as the case may be, its share, if any, of such payments
received by the Administrative Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of 360
days (or, in the case of the commitment fee described in Section 3.3.1 and
interest on a Base Rate Loan (calculated at other than the Federal Funds Rate),
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (ii) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligation (other
than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in excess of its
pro rata share of payments then or therewith obtained by all Lenders, such
Lender shall purchase from the other Lenders such participations in Credit
Extensions made by them as shall be necessary to cause such purchasing Lender
to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the purchase price to
the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (i) the amount
of such selling Lender's required repayment to the purchasing Lender, to (ii)
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation. If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section applies,
such Lender shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Lenders
entitled under this Section to share in the benefits of any recovery on such
secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence and during
the continuance of any Default described in clauses (a) through (d) of Section
8.1.9 or, with the consent of the Required Lenders, upon the occurrence and
during the continuance of any Event of Default described in Section 8.1.1 or
any acceleration of the Obligations (in whole or in part), have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) the Borrower hereby
grants to each Lender a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable
law or otherwise) which such Lender may have.
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SECTION 4.10. Replacement of Lenders. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (an "Affected Lender") makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 4.3, 4.5, or 4.6, and the payment of such
additional amounts are, and are likely to continue to be, materially greater in
the reasonable judgment of the Borrower than with respect to the other Lenders,
or if its Loans are effected by the circumstances described in Section 4.1, the
Borrower may, within 30 days of receipt by the Borrower of such demand or
notice (or the occurrence of such other event causing the Borrower to be
required to pay such compensation), as the case may be, give notice (a
"Replacement Notice") in writing to the Agents and such Affected Lender of its
intention to replace such Affected Lender with another financial institution (a
"Replacement Lender") designated in such Replacement Notice. If the Agents
shall, in the exercise of their reasonable discretion and within 30 days of
their receipt of such Replacement Notice, notify the Borrower and such Affected
Lender in writing that the designated financial institution is satisfactory to
the Agents (such consent not being required where the Replacement Lender is
already a Lender, and otherwise not to be unreasonably withheld), then such
Affected Lender shall, subject to the payment of any amounts due pursuant to
Section 4.4, assign, in accordance with Section 10.11.1, all of its
Commitments, Loans, Notes and other rights and obligations under this Agreement
and all other Loan Documents (including Reimbursement Obligations, if
applicable) to such designated financial institution; provided, however, that
(i) such assignment shall be without recourse, representation or warranty
(other than as to free and clear ownership) and shall be on terms and
conditions consistent with those set forth in Section 10.11.1, (ii) the
purchase price paid by such designated financial institution shall be in the
amount of such Affected Lender's Loans and its Percentage of outstanding
Reimbursement Obligations, together with all accrued and unpaid interest and
fees in respect thereof, plus (to the extent not paid by the Borrower) all
other amounts (including the amounts demanded and unreimbursed under Sections
4.3, 4.5 and 4.6), owing to such Affected Lender hereunder and (iii) the
Borrower shall pay to the Affected Lender and the Administrative Agent all
reasonable out-of-pocket expenses incurred by the Affected Lender and the
Administrative Agent in connection with such assignment and assumption
(including the processing fees described in Section 10.11.1). Upon the
effective date of an assignment described above, the Replacement Lender shall
become a "Lender" for all purposes under this Agreement and the other Loan
Documents and the Affected Lender shall cease to be such.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the
Lenders and, if applicable, the Issuer to fund the initial Credit Extension
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from
each Obligor, as applicable, (i) a copy of a good standing certificate, dated a
date reasonably close to the Effective Date, for each such Obligor and (ii) a
certificate, dated the date of the initial Credit Extension and with
counterparts for each Lender, duly executed and delivered by such Obligor's
Secretary or Assistant Secretary or managing member, as applicable, as to
(a) resolutions of each such Obligor's Board of Directors (or
other managing body, in the case of other than a corporation) then in
full force and effect authorizing the execution, delivery and
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performance of this Agreement and each other Loan Document to be
executed by such Obligor and the transactions contemplated hereby and
thereby;
(b) the incumbency and signatures of those of its officers or
managing member, as applicable, authorized to act with respect to this
Agreement and each other Loan Document to be executed by such Obligor;
and
(c) the full force and validity of each Organic Document of
such Obligor and copies thereof.
The Agents, each Lender and the Issuer may conclusively rely upon such
certificates until it shall have received a further certificate of the
Secretary, Assistant Secretary or managing member, as applicable, of any such
Obligor canceling or amending the prior certificate of such Obligor.
SECTION 5.1.2. Closing Date Certificate. The Agents shall have
received, with counterparts for each Lender, the Borrower Closing Date
Certificate, dated the date of the initial Credit Extension and duly executed
and delivered by an Authorized Officer of the Borrower, in which certificate
the Borrower shall agree and acknowledge that the statements made therein shall
be deemed to be true and correct representations and warranties of the Borrower
as of such date, and, at the time each such certificate is delivered, such
statements shall in fact be true and correct. All documents and agreements
required to be appended to the Closing Date Certificate shall be in form and
substance reasonably satisfactory to the Arranger.
SECTION 5.1.3. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender, such Lender's Note (including the
Swing Line Lender's Swing Line Note) duly executed and delivered by an
Authorized Officer of the Borrower.
SECTION 5.1.4. Pledge Agreement. The Administrative Agent shall have
received, with counterparts for each Lender,
(a) the Pledge Agreement, dated the date hereof, duly
executed and delivered by an Authorized Officer of the Borrower and
each Guarantor that has any U.S. Subsidiaries that are Guarantors,
together with
(i) certificates evidencing all of the issued and
outstanding shares of Capital Stock owned by (x) the Borrower
in each Guarantor and (y) such Guarantor in each such
Subsidiary (other than BSG Government Solutions, Inc.), which
certificates shall be accompanied by undated stock powers
duly executed in blank; and
(ii) all Pledged Instruments (as defined in the
Pledge Agreement), if any, evidencing Indebtedness payable to
the Borrower or such Guarantor duly endorsed to the order of
the Administrative Agent, together with Uniform Commercial
Code Financing Statements (or similar instruments) in respect
of such Pledged Instruments executed by the Borrower or such
Guarantor to be filed in such jurisdictions as the Arranger
may reasonably request;
provided, that if any securities pledged pursuant to the Pledge
Agreement are uncertificated securities or are held through a
financial intermediary, the Administrative Agent shall have received
confirmation and evidence satisfactory to it that appropriate book
entries have been made in the
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relevant books or records of a financial intermediary or the issuer of
such securities, as the case may be, or other appropriate steps have
been taken under applicable law resulting in the perfection of the
security interest granted in favor of the Administrative Agent in such
securities pursuant to the terms of the Pledge Agreement; and
(b) the Agents and their counsel shall be reasonably
satisfied that the Lien granted to the Administrative Agent, for the
benefit of the Secured Parties in the Collateral described above is,
subject to Permitted Liens, a first priority security interest; and no
Lien exists on any of the Collateral described above other than the
Lien created in favor of the Administrative Agent, for the benefit of
the Secured Parties, pursuant to a Loan Document and Permitted Liens.
SECTION 5.1.5. Subsidiary Guaranty. The Agents shall have received,
with counterparts for each Lender, a Subsidiary Guaranty, dated the date
hereof, duly executed and delivered by each Guarantor.
SECTION 5.1.6. Security Agreement. The Agents shall have received,
with counterparts for each Lender, executed counterparts of the Security
Agreement, dated as of the date hereof, duly executed by the Borrower and each
Guarantor, together with
(a) executed copies of Uniform Commercial Code financing
statements (Form UCC-1), naming each Obligor under the Security
Agreement as a debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, to be filed under
the Uniform Commercial Code in all jurisdictions as may be necessary
or, in the reasonable opinion of the Arranger, desirable to perfect
the security interests of the Administrative Agent pursuant to the
Security Agreement;
(b) to the extent the Arranger may reasonably request,
executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens and
other rights of any Person other than Permitted Liens (i) in any
Collateral described in the Security Agreement previously granted by
any Person, and (ii) in respect of any of the Indebtedness identified
in Item 7.2.2(b) of the Disclosure Schedule, together with such other
Uniform Commercial Code Form UCC-3 termination statements as the
Arranger may reasonably request from such Obligors; and
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Administrative Agent, dated a
date reasonably near to the date of the initial Credit Extension,
listing searches conducted in such jurisdictions as are reasonably
satisfactory to the Arranger, together with copies of the results of
such searches.
SECTION 5.1.7. Copyright Security Agreement and Trademark Security
Agreement. The Administrative Agent shall have received the Copyright Security
Agreement and the Trademark Security Agreement, as applicable, each dated as of
the date hereof, duly executed and delivered by the applicable Obligor.
SECTION 5.1.8. Financial Information, etc. The Agents shall have
received, with counterparts for each Lender,
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(a) audited consolidated financial statements of the Borrower
and its Subsidiaries for the Fiscal Years ended December 31, 1995,
December 31, 1996 and December 31, 1997, in each case reasonably
satisfactory in all material respects to the Arranger; and
(b) a Borrowing Base Certificate, dated the date of the
initial Credit Extension and calculated as of the calendar year ended
immediately prior to such date, duly executed (with all schedules
thereto completed) and delivered by an Authorized Officer of the
Borrower.
SECTION 5.1.9. Compliance Certificate. The Agents shall have
received, with counterparts for each Lender, an initial Compliance Certificate
on a pro forma basis as if the Credit Extension to be made on the date of the
initial Borrowing, the issuance of the Senior Notes and the application of the
net proceeds thereof had occurred as of December 31, 1997 and as to such items
therein as the Agents reasonably request, dated the date of the initial Credit
Extension, duly executed (and with all schedules thereto duly completed) and
delivered by a Responsible Officer of the Borrower.
SECTION 5.1.10. Purchase and Sale of Senior Notes, etc. The Borrower
shall have issued and sold the Senior Notes and received gross proceeds of
$175,000,000 from such issuance and sale. The Arranger shall be reasonably
satisfied with all terms and conditions of the Senior Notes, the Senior Note
Indenture and all other Senior Note Documents.
SECTION 5.1.11. Perfection Certificate. The Agents shall have received
a Perfection Certificate, dated as of the date of the initial Credit Extension,
duly executed and delivered by an Authorized Officer of each Obligor that is a
party thereto.
SECTION 5.1.12. Payment of Outstanding Indebtedness, etc. All Bridge
Notes and all other Indebtedness identified in Item 7.2.2(b) ("Indebtedness to
be Paid") of the Disclosure Schedule, together with all interest, all
prepayment premiums and other amounts due and payable with respect thereto,
shall have been paid in full from the proceeds of the initial Credit Extension
and the Senior Notes and the commitments in respect of such Indebtedness shall
have been terminated, and all Liens securing payment of any such Indebtedness
shall have been released and the Administrative Agent shall have received all
Uniform Commercial Code Form UCC-3 termination statements or other instruments
as may be suitable or appropriate in connection therewith.
SECTION 5.1.13. Litigation. There shall exist no pending or threatened
material litigation, proceedings or investigations which (x) contests the
consummation of the Transaction or the legality or validity of this Agreement,
any other Loan Document or any Senior Note Document or (y) except as disclosed
in any filing of the Borrower on Form 10-Q, Form 10-K or Form 8-K with the SEC
on or prior to February 13, 1998, could reasonably be expected to have a
Material Adverse Effect.
SECTION 5.1.14. Material Adverse Change. Except as disclosed in any
filing of the Borrower on Form 10-Q, Form 10-K or Form 8-K with the SEC on or
prior to February 13, 1998, there shall have occurred no material adverse
change in the business condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its Subsidiaries,
taken as a whole, since December 31, 1997.
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SECTION 5.1.15. Approvals. All necessary governmental, shareholders'
and third-party Permits and approvals in connection with the Transaction and
the execution, delivery and performance of this Agreement and the other Loan
Documents and Senior Note Documents shall have been duly obtained.
SECTION 5.1.16. Insurance. The Agents shall have received, with copies
for each Lender, a summary of all insurance policies of the Borrower and its
Subsidiaries, which policies evidence coverage required to be maintained
pursuant hereto and to each Loan Document.
SECTION 5.1.17. Opinions of Counsel. The Agents shall have received
opinions, dated the date of the initial Credit Extension and addressed to the
Administrative Agent and all Lenders, from
(a) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special New
York and California counsel to the Obligors;
(b) Xxxxx Xxxxx, general counsel to the Obligors; and
(c) Xxxx, Xxxxxxxx & Xxxxxxxx, special Georgia counsel to
the Obligors.
SECTION 5.1.18. Other Representations and Warranties. Each of the
representations and warranties of the Borrower and its Subsidiaries set forth
in the Senior Note Documents shall be true and correct in all material
respects.
SECTION 5.1.19. Closing Fees, Expenses, etc. Each of the Agents shall
have received for its own respective account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to Sections 3.3 and 10.3, if then invoiced.
SECTION 5.2. All Credit Extensions. The obligation of each Lender
and each Issuer to make any Credit Extension (including the initial Credit
Extension) shall be subject to Sections 2.1.3 and 2.1.4 and the satisfaction of
each of the conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
immediately before and after giving effect to any Credit Extension, the
following statements shall be true and correct:
(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Section 6.6) and in each
other Loan Document shall, in each case, be true and correct in all
material respects with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) the sum of (i) the aggregate outstanding principal amount
of all Loans, plus (ii) the aggregate amount of all Letter of Credit
Outstandings, does not exceed the lesser of (x) the then existing
Revolving Loan Commitment Amount and (y) the then applicable Borrowing
Base Amount;
(c) except as disclosed by the Borrower to the Agents and the
Lenders pursuant to Section 6.6,
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(i) no litigation, arbitration or governmental
investigation or proceeding shall be pending or, to the
knowledge of an officer of the Borrower, threatened against
the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect, or
which would adversely affect the legality, validity or
enforceability of this Agreement or any other Loan Document;
and
(ii) no development shall have occurred in any
litigation, arbitration or governmental investigation or
proceeding disclosed pursuant to Section 6.6 which could
reasonably be expected to have a Material Adverse Effect; and
(d) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. The Administrative Agent
shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each of
the delivery of a Borrowing Request or Issuance Request and the acceptance by
the Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by the Borrower that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct in all material respects.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Agents and their counsel; the Agents and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Agents or their counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to enter into this Agreement
and to make Credit Extensions hereunder, the Borrower represents and warrants
to each Secured Party as set forth in this Article.
SECTION 6.1. Corporate Existence and Power. The Borrower and each of
its Subsidiaries (i) is a corporation or other entity, validly existing and in
good standing (and duly incorporated in the case of a corporation) under the
laws of its jurisdiction of organization (or incorporation in the case of a
corporation), and (ii) has all corporate or other powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted and as proposed to be conducted; except, in each
case, where any failure of the foregoing to be true would not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.2. Authorization, Execution and Enforceability; Lien
Perfection.
(a) The execution, delivery and performance by the Borrower
and each of its Subsidiaries of this Agreement and each other Loan
Document to which it is a party and the issuance of the Notes by the
Borrower have been duly and validly authorized and are within its
corporate or other powers.
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Each of the Loan Documents (including the Notes) has been duly
executed and delivered by the Borrower and each of its Subsidiaries
party thereto and constitutes its valid and binding agreement,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights generally and equitable principles of
general applicability.
(b) Each Collateral Document (together with the delivery to
the Administrative Agent of any instrument and certificated
securities) creates valid and binding Liens in the Collateral
purported to be covered thereby, and upon completion of the actions
and filings described in the Collateral Documents and Perfection
Certificate such Liens, to the extent the same may be perfected under
Articles 8 or 9 of the UCC, will constitute perfected Liens, subject
to no prior or equal Lien other than Permitted Liens.
SECTION 6.3. Governmental Authorization. The execution and delivery by
the Borrower and each of its Subsidiaries of this Agreement, the Notes and each
of the other Loan Documents to which it is a party did not and will not, and
the consummation by the Obligors of the transactions contemplated hereby and
thereby will not, require any action by or in respect of, or filing with, any
governmental body, agency or governmental official except (i) the actions and
filings described in Item 6.3 of the Disclosure Schedule or Section 6.2, (ii)
those of which have been taken or obtained and are in full force and effect,
and (iii) other actions and filings which, if not taken or made, will not
affect in any material respect the validity or enforceability of this
Agreement, the Notes or any other Loan Documents or the perfection or priority
of the Lien created under the Collateral Documents.
SECTION 6.4. Contravention. The execution and delivery by the Borrower
and each of its Subsidiaries of this Agreement, the Notes or any other Loan
Documents to which it is a party did not and will not and the consummation of
the transactions contemplated hereby and thereby will not, contravene or
constitute a default under or violation of any provision of applicable law or
regulation, the Organic Documents or any material agreement, judgment,
injunction, order, decree or other instrument binding upon it or any of its
assets, or result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries (other than the Liens created by the Loan
Documents and Permitted Liens).
SECTION 6.5. Financial Information, etc.
(a) All financial statements delivered pursuant to Section
5.1.8, fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and its Subsidiaries as of the
dates thereof and their consolidated results of operations, changes in
stockholders' equity and cash flows for the period's covered thereby.
(b) On the Closing Date, the Borrower and its Subsidiaries
will not have any liabilities, contingent or otherwise, including
liabilities for taxes, unusual or forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments,
except (i) as referred to or reflected or provided for in the audited
consolidated balance sheet for the Fiscal Year ended December 31, 1997
or the notes thereto or (ii) as could not reasonably be expected to
have a Material Adverse Effect.
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(c) Except as disclosed in any Form 10-Q, Form 10-K or Form
8-K filed with the SEC on or prior to February 13, 1998, no
development has occurred since December 31, 1997 that has resulted, or
could reasonably be expected to result, in a Material Adverse Effect.
SECTION 6.6. Litigation. There is no action, suit or proceeding
pending or, to the knowledge of the Borrower, threatened against the Borrower
or any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official (i) for which there is a reasonable possibility of an
adverse decision that would have a Material Adverse Effect, except as disclosed
in any filing of the Borrower on Form 10-Q, Form 10-K or Form 8-K with the SEC
on or prior to February 13, 1998, or (ii) which challenges the validity of this
Agreement, the Notes, any other Loan Document or any Senior Note Document.
SECTION 6.7. Taxes. The Borrower's federal tax identification number
is 00-0000000. All income tax returns and all other material tax returns which
are required to be filed by or on behalf of the Borrower and its Subsidiaries
have been filed, except where the failure to file any of the same would not
have a Material Adverse Effect. All taxes shown as due on such returns have
been paid or adequate reserves have been established on the books of the
Borrower, except to the extent that (i) the Borrower's failure to pay any such
taxes would not have a Material Adverse Effect or (ii) any such taxes as are
being contested in good faith and for which adequate reserves are maintained on
the books of the Borrower. The charges, accruals and reserves on the books of
the Borrower and its Consolidated Subsidiaries in respect of taxes or other
governmental charges have been established in accordance with GAAP.
SECTION 6.8. Subsidiaries. Item 6.8 of the Disclosure Schedule sets
forth a complete list of all of the Borrower's direct or indirect Subsidiaries
as of the date hereof and the federal tax identification number, if any, for
each such Subsidiary. Each Subsidiary listed on such Item 6.8 with an asterisk
appearing after its name does not own any material amount of assets.
SECTION 6.9. Not a Regulated Entity. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, nor is the Borrower a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
SECTION 6.10. Full Disclosure. The information (other than any
projections) heretofore furnished by the Borrower to the Arranger for purposes
of or in connection with this Agreement, the Notes or any other Loan Documents
or any transaction contemplated herein or therein does not, and all such
information hereafter furnished by the Borrower to any Agent or Lender will not
(in each case taken together and on the date as of which such information is
furnished), contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they are made, not misleading. All
projections heretofore furnished by the Borrower to the Syndication Agent for
purposes of or in connection with this Agreement, the Notes or any other Loan
Documents or any transaction contemplated hereby or thereby have been, and all
projections hereafter furnished by the Borrower to any Agent or Lender will be,
prepared in good faith and based upon reasonable assumptions believed to be
reasonable at the time such projections were prepared. The Borrower has
disclosed to the Arranger any and all facts which materially and adversely
affect or may affect (to the extent the Borrower can now reasonably foresee),
the business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower or any of its
subsidiaries to perform its obligations under this Agreement, the Notes or any
other Loan Documents or to complete the transactions contemplated hereby or
thereby.
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SECTION 6.11. Permits. Except to the extent any of the following would
not result in a Material Adverse Effect, (i) the Borrower and its Subsidiaries
have all Permits as are necessary for the conduct of their respective
businesses as it has been carried on, (ii) all such Permits are in full force
and effect, and each of the Borrower and its Subsidiaries has fulfilled and
performed all material obligations with respect to such Permits, (iii) no event
has occurred which allows, or after notice or lapse of time would allow,
revocation or termination by the issuer thereof or which results in any other
impairment of the rights of the holder of any such Permit, and (iv) each of the
Borrower and its Subsidiaries has no reason to believe that any governmental
body or agency is considering limiting, suspending or revoking any such Permit.
SECTION 6.12. Real Property Interests. Other than the ownership
interests in real property disclosed on Item 6.12 of the Disclosure Schedule,
neither the Borrower nor any Subsidiary has any ownership interest in any real
property on and as of the date hereof.
SECTION 6.13. Compliance with ERISA. Except to the extent the same
would not individually or in the aggregate have a Material Adverse Effect, each
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code or (iii) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA except, in each case, as would not individually or in the
aggregate have a Material Adverse Effect.
SECTION 6.14. Ownership of Properties. Except for Permitted Liens, the
Borrower and each of its Subsidiaries owns (i) in the case of owned real
property, good and marketable fee title to, and (ii) in the case of owned
personal property, good and valid title to, or, in the case of leased real or
personal property, valid and enforceable leasehold interests (as the case may
be) in, all of its properties and assets, real and personal, tangible and
intangible, of any nature whatsoever, free and clear in each case of all Liens
or claims, except where the failure to so own such title or have such leasehold
interest would not individually or in the aggregate have a Material Adverse
Effect.
SECTION 6.15. Environmental Warranties. Except as set forth in Item
6.15 of the Disclosure Schedule and except where the failure of any of the
following to be true individually or in the aggregate would not have a Material
Adverse Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its
Subsidiaries have been, and continue to be, in material compliance
with all Environmental Laws except for noncompliances which have been
fully resolved with the relevant Governmental Authorities and which
have resulted in a return to compliance;
(b) there have been no unresolved past, and there are no
pending or, to the knowledge of any Responsible Officer of the
Borrower, threatened claims, complaints, notices or requests for
information received by the Borrower or any of its Subsidiaries with
respect to any alleged violation of any Environmental Law, or any
complaints, notices or, to the knowledge of any Responsible
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Officer of the Borrower, inquiries to the Borrower or any of its
Subsidiaries regarding potential liability under any Environmental
Law;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or, to the knowledge of the Borrower,
previously owned or leased by the Borrower or any of its Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and
are in compliance with all permits, certificates, approvals, licenses
and other authorizations required by any applicable Environmental Law;
(e) no property now or, to the knowledge of the Borrower,
previously owned or leased by the Borrower or any of its Subsidiaries
is listed or, to the knowledge of any Responsible Officer of the
Borrower, proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower or any of its
Subsidiaries that, singly or in the aggregate, have, or reasonably be
expected to have, a Material Adverse Effect;
(g) neither the Borrower nor any Subsidiary of the Borrower
has directly transported or directly arranged for the transportation
of any Hazardous Material to any location which is listed or, to the
knowledge of any Responsible Officer of the Borrower, proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or, to the knowledge of
any Responsible Officer of the Borrower, other investigations which
may lead to material claims against the Borrower or such Subsidiary
thereof for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or leased by
the Borrower or any Subsidiary of the Borrower that, singly or in the
aggregate, have, or could reasonably be expected to have, a Material
Adverse Effect;
(i) no conditions exist at, on or under any property now or,
to the knowledge of the Borrower, previously owned or leased by the
Borrower which, with the giving of notice, would give rise to material
liability under any Environmental Law; and
(j) neither the Borrower nor any of its Subsidiaries owns or
operates any medical waste treatment or incineration facility
regulated under Environmental Laws or has arranged for the treatment
or disposal of any Hazardous Material from a medical facility at an
offsite treatment or disposal facility.
SECTION 6.16. Intellectual Property. The Borrower owns and possesses
or licenses (as the case may be) all such patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, service marks, service xxxx
rights and copyrights necessary for the conduct of the business of the Borrower
as now
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conducted without any infringement upon rights of other Persons, in each case
except as, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. To the extent required pursuant to the
Security Agreement, valid, binding and perfected Liens have been created in
favor of the Administrative Agent for the benefit of the Secured Parties in all
material patents and patents rights, if any, owned by the Borrower and the
Guarantors, which Liens shall, except for Permitted Liens, be first priority
Liens.
SECTION 6.17. Regulations G, U and X. Neither the Borrower nor any of
its Subsidiaries are engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock, and no proceeds of any Credit
Extensions will be used to purchase or carry margin stock or otherwise for a
purpose which violates, or would be inconsistent with, F.R.S. Board Regulation
G, U or X. Terms for which meanings are provided in F.R.S. Board Regulation G,
U or X or any regulations substituted therefor, as from time to time in effect,
are used in this Section with such meanings.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Lender, each Issuer and the Administrative Agent that until all Commitments
have expired or terminated, all then accrued or due and payable monetary
Obligations have been paid and performed in full and all Letters of Credit have
expired or terminated (or the Issuer shall have received cash (in a cash
collateral account on terms reasonably satisfactory to the Issuer) in the
amount of all Letter of Credit Outstandings), the Borrower will, and will cause
its Subsidiaries to, perform or cause to be performed the obligations set forth
below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish or cause to be furnished to each Administrative Agent
(with sufficient copies for each Lender) copies of the following financial
statements, reports, notices and information:
(a) as soon as available and in any event within 45 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year, an unaudited consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such Fiscal Quarter and the
related unaudited consolidated statements of income and cash flows and
stockholders' equity (deficit) of the Borrower and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of
the previous Fiscal Year and ending with the end of such Fiscal
Quarter, and including (in each case), in comparative form, the
figures for the corresponding Fiscal Quarter in, and year to date
portion of, the immediately preceding Fiscal Year, certified (subject
to footnote presentation and normal year-end adjustments, and
excepting changes concurred in by the Borrower's independent public
accountants) as to fairness of presentation, GAAP and consistency by
the chief executive, financial or accounting Authorized Officer of the
Borrower;
(b) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a copy of the consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such
Fiscal Year, and the related consolidated statements of income and
cash flows and stockholders' equity (deficit) for such Fiscal Year,
setting forth in comparative form the figures for the immediately
preceding Fiscal Year, all reported on without material qualification
by Price Waterhouse LLP, any
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other "big six" accounting firm or any other independent public
accountants that is reasonably acceptable to the Administrative Agent,
which report shall be accompanied by a confirmation of the calculation
of the financial covenants set forth in Section 7.2.4 provided by the
Borrower pursuant to clause (c); provided that such confirmation shall
be limited to calculations which can reasonably be derived through the
use of the financial statements referred to in this clause (b);
(c) (i) concurrently with the delivery of the financial
information pursuant to clause (a) and clause (b), a Compliance
Certificate, executed by the chief executive, financial or accounting
Authorized Officer of the Borrower, showing compliance with the
financial covenants set forth in Section 7.2.4 and stating, to the
knowledge of the Responsible Officers of the Borrower, that no Default
has occurred and is continuing (or, if a Default has occurred,
specifying the details of such Default and the action that the
Borrower has taken or proposes to take with respect thereto) and (ii)
45 days after the end of the fourth Fiscal Quarter of each Fiscal
Year, a Preliminary Compliance Certificate, executed by the chief
executive, financial or accounting Authorized Officer of the Borrower,
showing the Borrower's compliance or noncompliance with the financial
covenants set forth in Section 7.2.4;
(d) as soon as possible and in any event within five Business
Days after any officer of the Borrower obtains knowledge of the
occurrence of a Default, a statement of the chief executive, financial
or accounting Authorized Officer of the Borrower setting forth details
of such Default and the action which the Borrower has taken and
proposes to take with respect thereto;
(e) as soon as possible and in any event within five Business
Days after any officer of the Borrower or any of its Subsidiaries
obtains knowledge of (i) the occurrence of any adverse development
which could reasonably be expected to have a Material Adverse Effect
with respect to any litigation, action or proceeding described in any
filing of the Borrower on Form 10-K, Form 10-Q or Form 8-K filed with
the SEC on or prior to February 13, 1998 or (ii) the commencement of
any litigation, action or proceeding is of the type and materiality
described in Section 6.6, notice thereof and, to the extent the
Administrative Agent requests, copies of all non- privileged
documentation relating thereto;
(f) promptly after the sending or filing thereof, copies of
all reports, notices, proxy statements, prospectuses and registration
statements which the Borrower or any of its Subsidiaries files with
the SEC or any national securities exchange;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or
is required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other
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information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any required payment or contribution to any Plan
or Multiemployer Plan or makes any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the Borrower's chief
financial Authorized Officer or chief accounting Authorized Officer
setting forth details as to such occurrence and the action, if any,
which the Borrower or applicable member of the ERISA Group is required
or proposes to take;
(h) promptly, and in any event no later than 30 days, after
any U.S. Subsidiary shall be formed or any Person shall become a U.S.
Subsidiary, notice thereof;
(i) promptly upon receipt thereof, copies of all "management
letters" submitted to the Borrower by the independent public
accountants referred to in clause (b) in connection with each audit
made by such accountants;
(j) within 30 days after the end of each calendar month, a
Borrowing Base Certificate that is calculated as of the last day of
such calendar month;
(k) promptly when available but in any event within 90 days
following the end of each Fiscal Year, a business plan for the
Borrower and its Subsidiaries for the next succeeding Fiscal Year,
which business plan shall be prepared in reasonable detail and shall
be presented on a Fiscal Quarter basis for each business segment of
the Borrower and shall project anticipated performance relative to the
financial covenants set forth in Section 7.2.4 hereof;
(l) as soon as available and in any event within 30 days
after the end of each calendar month ending on or prior to August 31,
1998, an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such calendar month and the related
unaudited consolidated statements of income and cash flows and
stockholders' equity (deficit) of the Borrower and its Subsidiaries
for such calendar month and for the period commencing at the end of
the previous Fiscal Year and ending with the end of such calendar
month, and including (in each case), in comparative form the figures
for the corresponding Calendar month in, and year to date portion of,
the immediately preceding Fiscal Year, certified (subject to footnote
presentation and normal year-end adjustments, and excepting changes
concurred in by the Borrower's independent public accountants) as to
fairness of presentation, GAAP and consistency by the chief executive,
financial or accounting Authorized Officer of the Borrower; and
(m) such other financial and other information as any Lender
through the Administrative Agent may from time to time reasonably
request (including information and reports in such detail as the
Administrative Agent may request with respect to the terms of and
information provided pursuant to the Compliance Certificate).
SECTION 7.1.2. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and
their respective properties in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary repairs, renewals and
replacements so that the business carried on by the Borrower and its
Subsidiaries may be properly conducted at all times, unless the Borrower
determines in good faith that the continued maintenance of such property is
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no longer economically desirable or the failure to comply with the foregoing
would not have a Material Adverse Effect.
SECTION 7.1.3. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective obligations and liabilities, including, without
limitation, tax liabilities, except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect, and will maintain,
and will cause each Subsidiary to maintain, in accordance with GAAP,
appropriate reserves for the accrual of any of the same.
SECTION 7.1.4. Insurance. The Borrower shall, and shall cause each of
its Subsidiaries to maintain such insurance, to such extent and against such
risks, including fire and other risks insured against by extended coverage, as
is customary with companies in the same or similar businesses operating in the
same or similar locations, including (i) public liability insurance against
claims for personal injury or death or property damage occurring upon, in,
about in connection with the use of any properties owned, occupied or
controlled by it and (ii) business interruption insurance; and maintain such
other insurance as may be required by law.
SECTION 7.1.5. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Subsidiary to continue, to: (i)
preserve, renew and keep in full force and effect their respective corporate
existence except where the failure of any Subsidiary to do so would not
reasonably be expected to have a Material Adverse Effect, and (ii) preserve,
renew and keep in full force and effect their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business, except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect and; provided, however, that nothing in this Section 7.1.5 shall
prohibit the dissolution of any Subsidiary, any permitted sale of any
Subsidiary or a merger or consolidation that is permitted under Section 7.2.10.
SECTION 7.1.6. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and the rules
and regulations thereunder), except where compliance therewith is contested in
good faith by appropriate proceedings or where the failure to comply would not
reasonably be expected to have a Material Adverse Effect.
SECTION 7.1.7. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and upon
reasonable advance notice will permit, and will cause each Subsidiary to
permit, representatives of each Agent to visit during normal business hours and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective executive officers and,
subject to the right of the Borrower's representative to participate in any
such discussions, independent public accountants at such reasonable times and
as often as may reasonably, be desired.
SECTION 7.1.8. Subsidiaries. The Borrower shall cause, pursuant to
Section 7.1.9, each of its direct and indirect U.S. Subsidiaries to become a
Guarantor pursuant to the Subsidiary Guaranty, exclusive, however, of (i) any
Subsidiary which constitutes a Joint Venture and (ii) any Subsidiary which is
listed on Item 6.8 of the Disclosure Schedule, which is designated with an
asterisk in such Item 6.8 and which either (x) is dissolved within 30 days of
the Effective Date or (y) has revenues of $100,000 or less per Fiscal Year.
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SECTION 7.1.9. Future Subsidiaries. The Borrower shall promptly notify
the Administrative Agent pursuant to clause (i) of Section 7.1.1 upon any
Person becoming a Subsidiary, or upon an Obligor directly or indirectly
acquiring additional Capital Stock of any existing Subsidiary, and
(a) such Person shall, if it is a U.S. Subsidiary that is not
a Joint Venture, (i) execute and deliver to the Administrative Agent a
supplement to the Subsidiary Guaranty and the Security Agreement and
(ii) to the extent such U.S. Subsidiary is required to pledge stock of
a Subsidiary pursuant to clause (b) of this Section, become a party to
the Pledge Agreement, if not already a party thereto as a pledgor, in
a manner reasonably satisfactory to the Administrative Agent;
(b) the Borrower and each U.S. Subsidiary that is not a Joint
Venture shall, pursuant to the Pledge Agreement, pledge to the
Administrative Agent all of the outstanding shares of Capital Stock of
each such new Subsidiary (other than any such new Subsidiary which is
a BSG Government Solutions Entity) owned directly by the Borrower or
such U.S. Subsidiary, along with undated stock powers for such
certificates, executed in blank (or, if any such shares of Capital
Stock are uncertificated, confirmation and evidence reasonably
satisfactory to the Administrative Agent that the security interest in
such uncertificated securities has been transferred to and perfected
by the Administrative Agent, for the benefit of the Secured Parties,
in accordance with Section 8-313, Section 8-321 and Section 9-115 of
the U.C.C. or any other similar or local or foreign law which may be
applicable); and
(c) the Borrower and each U.S. Subsidiary that is not a Joint
Venture shall, pursuant to the Pledge Agreement, pledge to the
Administrative Agent for its benefit and that of the Secured Parties,
all intercompany notes evidencing Indebtedness of such new Subsidiary
in favor of the Borrower or such U.S. Subsidiary (which shall be in a
form acceptable to the Administrative Agent);
together, in each case, to the extent requested by the Administrative Agent,
with such opinions of legal counsel for the Borrower (which shall be from
counsel reasonably satisfactory to the Administrative Agent) relating thereto,
which legal opinions shall be in form and substance reasonably satisfactory to
the Administrative Agent; provided that such opinion shall only be required in
respect of Subsidiaries having assets or revenues in excess of $5,000,000 at
the time of compliance with this Section.
SECTION 7.1.10. Use of Proceeds. The Borrower will use and apply the
proceeds of the Credit Extensions as follows:
(a) to repay the Bridge Notes in full and all other
Indebtedness (if any) identified in Item 7.2.2(b) of the Disclosure
Schedule;
(b) for ongoing working capital and general corporate
purposes of the Borrower and the Guarantors; and
(c) to pay fees and expenses associated with the Transaction.
SECTION 7.2. Negative Covenants. The Borrower covenants and agrees
with each Lender, each Issuer and the Administrative Agent that until all
Commitments have expired or terminated, all then accrued and unpaid monetary
Obligations have been paid and performed in full and all Letters of Credit have
expired or terminated (or the Issuer shall have received immediately available
funds in a collateral account on terms
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reasonably satisfactory to the Issuer, in the amount of all Letter of Credit
Outstandings), the Borrower will, and will cause its Subsidiaries to, perform
or cause to be performed the obligations set forth below.
SECTION 7.2.1. Business Activities. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business except those
businesses activities described in the first recital and such other businesses
as are similar or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, other than (without duplication):
(a) Indebtedness in respect of the Credit Extensions and
other Obligations;
(b) until the date of the initial Credit Extension,
Indebtedness that is to be repaid in full as further identified in
Item 7.2.2(b) of the Disclosure Schedule;
(c) Indebtedness of the Borrower and its Subsidiaries in
respect of the Senior Notes or outstanding on the date hereof and
identified in Item 7.2.2(c) of the Disclosure Schedule;
(d) Indebtedness of the Borrower or any wholly-owned
Subsidiary of the Borrower owing to any Guarantor, or of any
Indebtedness of any Guarantor owing to the Borrower or another
Guarantor, which Indebtedness shall, in each case, be evidenced by one
or more promissory notes which have been pledged to the Administrative
Agent for the benefit of the Secured Parties;
(e) Indebtedness in respect of Capital Expenditures
(including Capital Leases) which, at the time made, is permitted
pursuant to Section 7.2.7;
(f) Cash Management Services Obligations;
(g) Indebtedness of the Borrower or any of its Subsidiaries
incurred on account of financed insurance premiums for insurance
required under Section 7.1.4 and as otherwise maintained by the
Borrower or any such Subsidiary in the ordinary course of business;
(h) Hedging Obligations in respect of Indebtedness of the
type described in clause (a) of the definition of "Indebtedness");
(i) Indebtedness of any Person that is in existence at the
time it becomes or is consolidated into or merged with a Subsidiary of
the Borrower or that is secured by any asset acquired by the Borrower
or any Subsidiary at the time of such acquisition; provided that such
Indebtedness is not incurred in contemplation of such Person becoming
a Subsidiary or such acquisition of such asset by the Borrower or any
of its Subsidiaries, as the case may be;
(j) Indebtedness incurred under Capital Leases as part of a
sale-leaseback transaction of assets disclosed in Item 7.2.15 of the
Disclosure Schedule;
(k) renewals, refinancings, refundings or extensions of any
Indebtedness permitted by clauses (b), (e), (g), (h), (i) and (m) of
this Section 7.2.2; provided, however, that no increase in the
principal amount of any such Indebtedness in excess of accrued and
unpaid interest thereon and costs
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and expenses associated therewith shall be permitted unless such
increased amount would, at the time of such renewal, refinancing,
refunding or extension, otherwise be permitted to be incurred pursuant
to this Section and, if required, is applied pursuant to Section
3.1.1;
(l) Other Indebtedness the terms and conditions of which
shall have been approved by the Required Lenders and, unless otherwise
approved by the Required Lenders, the Net Debt Proceeds resulting
therefrom are applied in accordance with clause (c) of Section 3.1.1;
(m) other Indebtedness of the Borrower and its Subsidiaries
in an aggregate amount at any time outstanding not to exceed
$5,000,000;
(n) Indebtedness of the Receivables Subsidiary which has been
borrowed from a Person other than the Borrower or any Affiliate of the
Borrower and is limited in recourse solely to the Receivables
Subsidiary and its assets; and
(o) obligations of the Borrower and its Subsidiaries in
respect of any performance, surety or appeal bond or similar
instrument (including any letter of credit issued in lieu of any such
bond) that is issued in the ordinary course of business in respect of
any obligation of the Borrower or any of its Subsidiaries which is not
otherwise prohibited by this Agreement or the other Loan Documents.
Notwithstanding the restrictions on Indebtedness contained in this Section, the
Borrower and its Subsidiaries may incur Contingent Liabilities in respect of
(i) any Indebtedness of the Borrower or any Guarantor permitted under this
Section and (ii) any contractual obligations of the Borrower or any Guarantor
incurred in the ordinary course of business, except to the extent such
contractual obligations constitute Indebtedness that would be prohibited by
this Section.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or permit to exist any Lien upon
any of its property (including Capital Stock of any Person), revenues or
assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations or other
obligations secured pursuant to the Collateral Documents;
(b) until the date of the initial Credit Extension, Liens
securing payment of Indebtedness of the type permitted and described
in clause (b) of Section 7.2.2;
(c) Liens securing Indebtedness permitted by clause (b) of
Section 7.2.2; Liens securing Indebtedness permitted by clause (e) of
Section 7.2.2; provided, that such Lien does not extend to any
property or asset other than that acquired or leased pursuant to the
Capital Expenditure transaction pursuant to which such Indebtedness
was incurred; Liens securing Indebtedness permitted by clause (i) of
Section 7.2.2; provided that such Liens existed at the time such
Person became or was merged into or consolidated with a Subsidiary or
such asset was acquired, as the case may be (and was not created in
contemplation of this clause), and such Lien does not extend to any
property or assets other than that acquired in accordance with such
clause (i) of Section 7.2.2; Liens securing Indebtedness which renews,
refinances, refunds or extends other Indebtedness pursuant to clause
(k) of Section 7.2.2; provided that such Lien either (x) was otherwise
permitted to be created
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pursuant to this Section or (y) only extends to property or assets on
which a Lien existed, as security for such Indebtedness which was
renewed, refinanced, refunded or extended, immediately prior to such
renewal, refinancing, refunding or extension; and Liens on cash
collateral securing obligations of the type permitted pursuant to
clause (n) of Section 7.2.2.
(d) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being actively contested in
good faith by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in accordance with GAAP;
(e) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings, if
adequate reserves with respect thereto are maintained on the books of
the Borrower or its Subsidiaries, as the case may be, in accordance
with GAAP;
(f) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security benefits or obligations
or to secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, performance and
return-of-money and other similar obligations;
(g) zoning ordinances, easements, licenses, restrictions on
the use of real property and minor irregularities in title thereto
which do not materially impair the use of such property in the
operation of the business of the Borrower or any of its Subsidiaries
or the value of such property;
(h) inchoate Liens arising under ERISA to secure current
service pension liabilities as they are incurred under the provisions
of Plans from time to time;
(i) Liens identified on Item 7.2.3 of the Disclosure
(j) Liens securing Indebtedness and other obligations, in
each case permitted hereby, in an aggregate amount not to exceed
$5,000,000 at any time outstanding;
(k) Liens securing Indebtedness permitted pursuant to clause
(n) of Section 7.2.2; and
(l) judgment Liens which do not otherwise constitute an Event
of Default.
SECTION 7.2.4. Financial Covenants. The Borrower will not permit to
occur any of the events set forth below. Any term or provision hereof to the
contrary notwithstanding, compliance with the financial covenants set forth in
this Section 7.2.4 shall be determined from and after the date when the
Compliance Certificates required pursuant to clause (c) of Section 7.1.1 are
delivered in accordance with such Section following the conclusion of any
applicable measurement period set forth below.
(a) The Borrower will not permit the Leverage Ratio as of the
end of any Fiscal Quarter occurring during any period set forth below
to be greater than the ratio set forth opposite such period:
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Period Leverage Ratio
------ --------------
7/1/98 - 12/31/98 4.00:1.0
1/1/99 - 3/31/99 3.75:1.0
4/1/99 - 6/30/99 3.50:1.0
7/1/99 - 9/30/99 3.25:1.0
10/1/99 - 12/31/99 3.00:1.0
1/1/00 - 6/30/00 2.75:1.0
7/1/00 - 12/31/00 2.50:1.0
Thereafter 2.25:1.0
(b) The Borrower will not permit the Interest Coverage Ratio
as of the end of any Fiscal Quarter occurring during any period set
forth below to be less than the ratio set forth opposite such period:
Period Interest Coverage Ratio
------ -----------------------
1/1/98 - 6/30/98 2.00:1.0
7/1/98 - 12/31/98 2.25:1.0
1/1/99 - 3/31/99 2.50:1.0
4/1/99 - 6/30/99 2.75:1.0
7/1/99 - 9/30/99 3.00:1.0
10/1/99 - 12/31/99 3.25:1.0
1/1/00 - 3/31/00 3.50:1.0
4/1/00 - 6/30/00 3.75:1.0
Thereafter 4.00:1.0
(c) The Borrower will not permit EBITDA, for the period of
four Fiscal Quarters ending on the last day of any Fiscal Quarter
occurring during any period set forth below (or, if less, for the
number of Fiscal Quarters ended since January 1, 1998) to be less than
the applicable amount set forth opposite such period:
Period Amount
------ ------
1/1/98 - 3/31/98 $10,000,000
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Period Amount
------ ------
4/1/98 - 6/30/98 $25,000,000
7/1/98 - 9/30/98 $44,000,000
10/1/98 - 12/31/98 $62,500,000
1/1/99 - 3/31/99 $67,500,000
4/1/99 - 6/30/99 $70,000,000
7/1/99 - 9/30/99 $72,500,000
10/1/99 - 12/31/99 $75,000,000
1/1/00 - 3/31/00 $80,000,000
Thereafter $85,000,000
(d) The Borrower will not permit, as of the end of any Fiscal
Quarter, Net Worth to be less than an aggregate amount equal to (i)
$465,000,000 plus (ii) 50% of cumulative positive Net Income from the
Effective Date to the end of the Fiscal Quarter most recently ended on
or prior to such date of determination less (iii) the aggregate amount
of all accelerated write-offs of good-will to the end of such Fiscal
Quarter.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, make, incur, assume or permit to exist
any Investment in any other Person, except:
(a) Investments existing on the Effective Date (x) in
Subsidiaries listed in Item 6.8 of the Disclosure Schedule or (y)
identified in Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments in the form of Indebtedness permitted by
clause (d) of Section 7.2.2 and equity investments in any Guarantor
which is a wholly-owned Subsidiary of the Borrower;
(d) Investments in the form of the acquisition of stock,
obligations or securities received in settlement or satisfaction of
debt or other monetary obligations which are created in the ordinary
course of business (and not in contemplation of satisfying this
Section 7.2.5) and are owing to the Borrower or any of its
Subsidiaries;
(e) Investments in the form of (x) an endorsement of a
negotiable instrument for collection or deposit in the ordinary course
of business or (y) usual and customary trade terms extended by the
Borrower or any of its Subsidiaries to any customer in the ordinary
course of business;
(f) Investments by the Borrower or any of its Subsidiaries in
Joint Ventures, or by the Borrower or any of its Subsidiaries in
connection with direct or indirect acquisitions of businesses and
assets, which (i) would not cause a breach of Section 7.2.1, (ii) do
not exceed $10,000,000 for
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any individual Investment or $25,000,000, in the aggregate, for all
such Investments (whether or not related) made pursuant to this clause
(f) during any Fiscal Year; provided, that, for purposes of
determining compliance with this clause (f) in connection with any
acquisition pursuant to this clause (f) of the type described in
clause (f) of Section 7.2.2, each of the amounts set forth above in
this clause (ii) shall be reduced, dollar for dollar for any
transaction or Fiscal Year, as applicable, by the amount of any
permitted Indebtedness assumed pursuant to clause (i) of Section 7.2.2
in respect of any such acquisition, and (iii) if made in the
Receivables Subsidiary, do not exceed $2,000,000, inclusive of the
amount of any Investments made in the Receivables Subsidiary pursuant
to clause (j) below;
(g) Investments in the form of loans and advances made to
directors, officers and employees of the Borrower pursuant to employee
benefit, incentive or similar plans or arrangements for the purpose of
enabling any such director, officer or employee to acquire Capital
Stock of the Borrower; provided that the aggregate amount of all such
loans and advances made in cash outstanding at any time pursuant to
this clause (g) does not exceed $5,000,000;
(h) Investments received by the Borrower or any Subsidiary in
connection with any sale or other disposition of assets permitted by
Section 7.2.12;
(i) Investments constituting Capital Expenditures permitted
pursuant to Section 7.2.7; and
(j) Investments not otherwise permitted by this Section 7.2.5
in an amount not to exceed $15,000,000 in the aggregate at any time
outstanding; provided, that, (x) for purposes of determining
compliance with this clause (j), in the event of any acquisition
pursuant to this clause (j) of the type described in clause (i) of
Section 7.2.2, the amount of any permitted Indebtedness assumed in
connection with any such acquisition shall be included, dollar for
dollar, as an Investment under this clause (j) in respect of any such
acquisition, and (y) no more than $2,000,000 in the aggregate
(inclusive of the amount of all Investments pursuant to clause
(f)(iii) above) may be invested pursuant to this clause (j) in the
Receivables Subsidiary.
Notwithstanding the restrictions on Investments contained in this Section, the
Borrower and its Subsidiaries may incur Contingent Liabilities in respect of
any Indebtedness of the Borrower or any Guarantor permitted under Section
7.2.2.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
date hereof:
(a) the Borrower will not, and will not permit any of its
Subsidiaries to, declare, pay or make any payment, dividend,
distribution or exchange (in cash, property or obligations) on or in
respect of any shares of any class of Capital Stock (now or hereafter
outstanding) of the Borrower or on any warrants, options or other
rights with respect to any shares of any class of Capital Stock (now
or hereafter outstanding) of the Borrower (other than (i) dividends or
distributions payable in its Capital Stock or warrants, options or
other rights with respect to its Capital Stock and (ii) exchanges,
splits or reclassifications of any of its Capital Stock into
additional or other shares of its Capital Stock) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets
(other than Capital Stock of the Borrower or any warrants, options or
other rights with respect thereto) to the purchase, redemption,
exchange, sinking fund or other retirement of, or agree or permit any
of its Subsidiaries to purchase, redeem or exchange, any shares of any
class of Capital Stock (now or
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hereafter outstanding) of the Borrower, or any warrants, options or
other rights with respect to any shares of any class of Capital Stock
(now or hereafter outstanding) of the Borrower with any funds,
property or assets (other than Capital Stock of the Borrower or any
warrants, actions or other rights with respect thereto); provided,
that the Borrower and its Subsidiaries may make payments up of to
$1,000,000 per Fiscal Year to repurchase, redeem or otherwise acquire
or retire any Capital Stock (or options or warrants for the same) of
the Borrower or any of its Subsidiaries from any director, officer or
employee or any employee plan or similar arrangement; and
(b) the Borrower will not, and will not permit any of its
Subsidiaries to, (i) make any payment or prepayment of principal of,
or make any payment of interest on, any Senior Notes on any day prior
to the date fixed for payment therefor as set forth in the Senior Note
Indenture and (y) pursuant to Sections 4.07 and 4.08 of the Senior
Note Indenture (in each case as in effect on the date hereof) or (ii)
except as permitted in clause (i) above, redeem, purchase or defease
any Senior Notes;
The foregoing prohibited acts referred to in clauses (a) and (b) above are
herein collectively referred to as "Restricted Payments".
SECTION 7.2.7. Capital Expenditures, etc. Other than as listed in Item
7.2.15 of the Disclosure Schedule or with Casualty Proceeds reinvested in the
business of the Borrower and its Subsidiaries pursuant to clause (e) of Section
3.1.1, the Borrower will not, and will not permit any Guarantor to, make or
commit to make Capital Expenditures in any Fiscal Year, except Capital
Expenditures (including Capitalized Lease Liabilities to the extent permitted
as Indebtedness pursuant to clause (e) of Section 7.2.2) which do not aggregate
in excess of the amount set forth below opposite such Fiscal Year:
Fiscal Year Capital Expenditure Amount
----------- ---------------------------
1998 $40,000,000
1999 $42,000,000; and
2000 $46,000,000,
provided, however, that to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to this Section exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year
under this Section (other than Capital Expenditures permitted pursuant to any
amount carried forward from the prior Fiscal Year pursuant to this proviso),
such excess amount may be carried forward to (but only to) the next succeeding
Fiscal Year (any such amount to be certified by the Borrower to the Agents in
the Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal
Year, and any such amount carried forward to a succeeding Fiscal Year shall be
deemed to be used prior to the Borrower and its Subsidiaries using the amount
of Capital Expenditures permitted by this Section without giving effect to such
carry-forward).
SECTION 7.2.8. Cash Settlement Payments. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly make or
agree to make any cash payments to settle any actual or threatened action, suit
or proceeding constituting an actual, threatened or potential class action
securities litigation, other than (i) settlement payments that are payable in
cash but will be fully funded by one or more
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insurance carriers, without any payment (other than the deductibles and
retentions) by the Borrower or any of its Subsidiaries or (ii) in connection
with settlements disclosed in the any filing of the Borrower on Form 10-Q, Form
10-K or Form 8-K filed with the SEC on or prior to February 13, 1998.
SECTION 7.2.9. Transactions with Affiliates. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, pay any funds to
or for the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any
Indebtedness, or otherwise) in, lease, sell, transfer or otherwise dispose of
any assets, tangible or intangible, to, or participate in, or effect any
transaction in connection with any joint enterprise or other joint arrangement
with, any Affiliate, except on terms to the Borrower or such Subsidiary no less
favorable in any material respect than terms that would be obtained by the
Borrower or such Subsidiary in a comparable transaction negotiated and
consummated in good faith and on an arm's-length basis from a Person that is
not an Affiliate and is under no compulsion to consummate such transaction; in
each case other than (a) any employment agreement or any employee benefit plan
or similar arrangement entered into in the ordinary course of business or (b)
transactions between or among the Borrower or any Guarantor.
SECTION 7.2.10. Consolidations and Mergers. Neither the Borrower nor
any of its Subsidiaries will consolidate or merge with or into any other
Person, except that if before and after giving effect to any such consolidation
or merger no Default shall have occurred and be continuing: (i) any Subsidiary
of the Borrower may merge or consolidate with or into the Borrower if the
Borrower is the surviving entity, (ii) any Subsidiary of the Borrower may merge
or consolidate with or into any Subsidiary, provided that if a Guarantor is a
party thereto, such Guarantor is the surviving entity or the surviving entity
becomes a Guarantor and (iii) any Subsidiary of the Borrower that is not a U.S.
Subsidiary may merge or consolidate with or into any other Subsidiary of the
Borrower that is not a U.S. Subsidiary.
SECTION 7.2.11. Stock of Subsidiaries. The Borrower will not, and will
not permit any Guarantor to, (i) issue any Capital Stock (whether for value or
otherwise) to any Person other than the Borrower or on a pro rata basis to all
shareholders or equity owners of such Guarantor or (ii) become liable in
respect of any obligation (contingent or otherwise) to purchase, redeem,
retire, acquire or make any other payment in respect of any shares of Capital
Stock of the Borrower or any Subsidiary or any option, warrant or other right
to acquire any such shares of Capital Stock if immediately after giving effect
thereto or such purchase, redemption, retirement, acquisition or payment a
Default will have occurred and be continuing.
SECTION 7.2.12. Permitted Dispositions. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease, license or otherwise
transfer, directly or indirectly, any of its or their assets or, other than as
permitted by Section 7.2.11, issue any equity securities of any Subsidiary
which, in the case of all such transfers and issuances, would exceed $5,000,000
in the aggregate during any Fiscal Year , exclusive, however, of the following
permitted transactions: (i) sales or other transfers of assets listed in Item
7.2.12 of the Disclosure Schedule, (ii) licenses (as licensor or licensee) of
trademarks and copyrights to customers in the ordinary course of business,
(iii) leases and subleases of assets in the ordinary course of business, (iv)
sales of assets (including, without limitation, Cash Equivalents and
uneconomical, obsolete, surplus, abandoned or out-dated equipment) in the
ordinary course of business, (v) sales, leases, licenses or other transfer of
assets to the Borrower or any Guarantor, (vi) sales, leases, licenses or other
transfers of assets by a Subsidiary that is not a Guarantor to any other such
Subsidiary or to the holders of its Capital Stock on a pro rata basis, and
(vii) sales, leases, licenses or other transfers permitted as Investments
permitted pursuant to clauses (f) or (j) of Section 7.2.5 (sales, leases,
licenses and other transfers of the types
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described in clauses (ii) through (vii) hereof being, collectively, "Excluded
Dispositions"). Any term or provision hereof to the contrary notwithstanding,
at least 80% of the consideration received by the Borrower or any of its
Subsidiaries in respect of any sale, disposition or other transfer permitted
hereunder, other than any Excluded Disposition, shall be in cash.
SECTION 7.2.13. Modification of Certain Agreements. The Borrower will
not, and will not permit any of its Subsidiaries to, without the prior written
consent of the Required Lenders, directly or indirectly, make or cause to be
made any material change, modification or alteration in the terms or conditions
of any Senior Note Document or any schedules, exhibits or agreements related
thereto, in each case which would adversely affect the rights or remedies of
the Lenders, or would materially adversely affect the Borrower's or such
Subsidiary's ability to perform hereunder or under any Loan Document.
SECTION 7.2.14. Restrictive Agreements, etc. With the exception of (x)
this Agreement or any other Loan Document, (y) any agreement governing
Indebtedness permitted by clause (b) of Section 7.2.2 as in effect on the
Effective Date, and (z) any agreement renewing, extending, refunding,
refinancing, amending or otherwise modifying any agreement referred to in the
preceding clause (y) so long as such agreement is not more restrictive, taken
as a whole, in respect of the matters set forth in this Section than the
applicable agreement referred to in the preceding clause (y), the Borrower will
not, and will not permit any of its Subsidiaries to, enter into any agreement
prohibiting (i) the ability of any Obligor to amend or otherwise modify this
Agreement or any other Loan Document or (ii) the ability of any Subsidiary
(other than a Subsidiary which is a Joint Venture) to make any payments,
directly or indirectly, to the Borrower or any Guarantor, including by way of
dividends, advances, repayments of loans, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments.
SECTION 7.2.15. Sale and Leaseback. Except in respect of assets
disclosed in Item 7.2.15 of the Disclosure Schedule, the Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly enter into
any agreement or arrangement providing for the sale or transfer by it of any
property (now owned or hereafter acquired) to a Person and the subsequent lease
or rental of such property or other similar property from such Person.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Article shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. Any Obligor shall default
in the payment or prepayment when due of (i) any principal of any Loan, or any
Reimbursement Obligation or any deposit of cash for collateral purposes
pursuant to Section 2.6.2 or Section 2.6.4, as the case may be. Any Obligor
shall default on the payment when due of any interest on any Loan, any fee
described in Article III or any other monetary Obligation (including any
Additional Compensation Amount) and such default shall continue unremedied for
a period of five Business Days after such amount was due.
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SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
any Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when
made or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance or observance of any of its
obligations under clause (d) or (i) of Section 7.1.1, Section 7.1.9 or Section
7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment when due (after giving effect to any applicable grace period),
whether by acceleration or otherwise, of any Indebtedness (other than any
Obligations) of the Borrower or any of its Subsidiaries having a principal
amount, individually or in the aggregate, in excess of $5,000,000, or a default
shall occur in the performance or observance of any obligation or condition
with respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent for such holders, to
cause or declare such Indebtedness to become due and payable or to require such
Indebtedness to be prepaid, redeemed, purchased or defeased, or require an
offer to purchase or defease such Indebtedness to be made, prior to its
expressed maturity.
SECTION 8.1.6. Judgments, etc. Any judgment or order for the payment
of money in excess of $1,000,000 (exclusive of any amounts fully covered by
insurance (less any applicable deductible) and as to which the insurer has not
disavowed or denied, in writing, its responsibility to cover such judgment or
order) shall be rendered against the Borrower or any of its Subsidiaries or any
other Obligor and such judgment shall not have been vacated or discharged or
stayed or bonded pending appeal within 60 days after the entry thereof.
SECTION 8.1.7. Pension Plans. Any of the following events shall
occur with respect to any Pension Plan which would reasonably be expected to
result in a Material Adverse Effect:
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, the Borrower or any such
member could be required to make a contribution to such Pension Plan,
or could reasonably expect to incur a liability or obligation to such
Pension Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any
Guarantor shall
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(a) generally fail to pay, or admit in writing its inability
or unwillingness generally to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in the appointment of
a trustee, receiver, sequestrator or other custodian for any
substantial part of the property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence in, or permit or suffer to exist, the appointment of a
trustee, receiver, sequestrator or other custodian for a substantial
part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within 60
days; provided, that the Borrower hereby expressly authorizes each
Secured Party to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law or any dissolution,
winding up or liquidation proceeding, in respect thereof, and, if any
such case or proceeding is not commenced by the Borrower or a
Guarantor, as the case may be, such case or proceeding shall be
consented to or acquiesced in by the Borrower or such Guarantor, as
the case may be, or shall result in the entry of an order for relief
or shall remain for 60 days undismissed; provided, that the Borrower
hereby expressly authorizes each Secured Party to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(e) take any action authorizing any of the foregoing.
SECTION 8.1.10. Impairment of Security or Collateral, etc. Any
Collateral Document or other Loan Document, or any Lien granted thereunder,
shall (except in accordance with its terms), in whole or in part, terminate,
cease to be effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto; any Obligor or any other party shall,
directly or indirectly, contest in any manner such effectiveness, validity,
binding nature or enforceability; or, except for Permitted Liens or as
permitted under any Loan Document, the Liens created under any Collateral
Documents shall at any time fail to constitute valid and perfected Liens on at
least 95% of the value of all of the Collateral purported to be secured
thereby, subject to no prior or equal Lien other than Permitted Liens.
SECTION 8.2. Action if Bankruptcy. If any Event of Default
described in clauses (a) through (d) of Section 8.1.9 shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations (including Reimbursement Obligations) shall automatically be and
become immediately due and payable, without notice or demand and the Borrower
or any other Person shall automatically and immediately be obligated to deposit
with the Administrative Agent cash collateral in an amount equal to all Letter
of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d)
of Section 8.1.9) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require the Borrower to
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provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the undrawn amount of all Letter of Credit Outstandings, and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall automatically and
immediately be obligated to deposit with the Administrative Agent cash
collateral in an amount equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its
Syndication Agent and Wachovia as its Administrative Agent under and for
purposes of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Administrative Agent to act on behalf of such Lender under this
Agreement, the Notes and each other Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by
the Agents (with respect to which each of the Agents agree that they will
comply, except as otherwise provided in this Section or as otherwise advised by
counsel in order to avoid contravention of applicable law), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of
the Agents by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender hereby indemnifies (which indemnity
shall survive any termination of this Agreement) the Agents, pro rata according
to such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, the Agents in any way relating to or arising out of this Agreement,
the Notes and any other Loan Document, including reasonable attorneys' fees,
and as to which any Agent is not reimbursed by the Borrower; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted from such Agent's gross negligence or wilful misconduct. The Agents
shall not be required to take any action hereunder or under any other Loan
Document, or to prosecute or defend any suit in respect of this Agreement or
any other Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agents shall be or become, in
such Agent's determination, inadequate, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
3:00 p.m., Atlanta, Georgia time, on the Business Day prior to a Borrowing that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender
shall not have made such amount available to the Administrative Agent, such
Lender and the Borrower severally agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date the Administrative Agent made such amount available
to the Borrower to the date such amount is repaid to the Administrative Agent,
at the interest rate applicable at the time to Loans comprising such Borrowing
(in the case of the Borrower) and (in the case of a Lender), at the Federal
Funds
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Rate (for the first two Business Days after which such amount has not been
repaid, and thereafter at the interest rate applicable to Loans comprising such
Borrowing.
SECTION 9.3. Exculpation. None of the Agents, the Swing Line Lender,
the Issuer or any of their respective directors, officers, employees or agents
shall be liable to any Lender for any action taken or omitted to be taken by it
under this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by any Agent, the Swing Line Lender or the Issuer shall not
obligate it to make any further inquiry or to take any action. The Agents, the
Swing Line Lender and the Issuer shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Agents, the Swing Line Lender or the Issuer
believes to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon
one Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may (i) resign as such at any time upon at least 30 days'
prior notice to the Borrower and all Lenders or (ii) be replaced at any time
upon at least 30 days' prior notice from the Borrower to the Agents and the
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may appoint another Lender acceptable to the Borrower as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed by
the Required Lenders and approved by the Borrower, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent (reasonably satisfactory
to the Borrower), which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having (x) a
combined capital and surplus of at least $250,000,000 and (y) a credit rating
of AA or better by Xxxxx'x or a comparable rating by S&P; provided, however,
that if, after expending all reasonable commercial efforts, such retiring
Administrative Agent is unable to find a commercial banking institution which
is willing to accept such appointment and which meets the qualifications set
forth in clause (y) above, such retiring Administrative Agent, shall be
permitted to appoint as its successor from all available commercial banking
institutions willing to accept such appointment such institution having the
highest credit rating of all such available and willing institutions. Any, term
or provision hereof to the contrary notwithstanding, the Borrower shall not be
permitted to replace the Administrative Agent unless it has found a successor
Administrative Agent which is willing to accept such appointment and is either
satisfactory to the Required Lenders or meets the requirements set forth in the
immediately preceding sentence. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
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(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
SECTION 9.5. Credit Extensions by each Agent. Each Agent, the Swing
Line Lender and the Issuer shall have the same rights and powers with respect
to (x) (i) in the case of the Agents and the Swing Line Lender, the Credit
Extensions made by it or any of its Affiliates and (ii) in the case of the
Issuer, the Loans made by it or any of its Affiliates, and (y) the Notes held
by such Agent, the Swing Line Lender, the Issuer or any of their respective
Affiliates as any other Lender and may exercise the same as if it were not an
Agent or the Issuer. Each Agent, the Swing Line Lender, the Issuer and each and
their respective 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 such Agent, the Swing Line Lender or Issuer
were not an Agent, the Swing Line Lender or the Issuer hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, the Documentation Agent, the Arranger, the Swing
Line Lender, the Issuer and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent, the
Documentation Agent, the Arranger, the Swing Line Lender, the Issuer and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any
other Loan Document.
SECTION 9.8. The Swing Line Lender, the Issuer, the Syndication Agent
and the Administrative Agent. Notwithstanding anything else to the contrary
contained in this Agreement or any other Loan Document, the Swing Line Lender,
the Issuer and the Agents, in their respective capacities as such, each in such
capacity, shall have no duties or responsibilities under this Agreement or any
other Loan Document nor any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Swing Line Lender, the Issuer or any Agent, as applicable, in such capacity
except as are explicitly set forth herein or in the other Loan Documents.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; provided, however, that
no such amendment, modification or waiver shall:
(a) extend the Stated Maturity Date or modify this Section
10.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Lender's Percentage
of any Commitment Amount, increase the aggregate amount of any Loans
required to be made by a Lender pursuant to its Commitments (except
pursuant to a waiver or amendment permitted hereby) or reduce any fees
described in Article III payable to any Lender without the consent of
such Lender;
(c) extend the Stated Maturity Date for any Lender's Loan, or
reduce the principal amount of or rate of interest on any Lender's
Loan, without the consent of such Lender (it being understood and
agreed, however, that any vote to rescind any acceleration made
pursuant to Section 8.2 and Section 8.3 of amounts owing with respect
to the Loans and other Obligations shall only require the vote of the
Required Lenders);
(d) change the definition of "Required Lenders" or any
requirement hereunder that any particular action be taken by all
Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit or any
Lender's Percentage in such Letter of Credit or any Letter of Credit
Outstandings in respect thereof, unless consented to by the Issuer of
such Letter of Credit;
(f) except as otherwise contemplated in the Loan Documents,
release (i) any Guarantor from its obligations under a Subsidiary
Guaranty or (ii) all or substantially all of the Collateral under the
Loan Documents, in either case without the consent of all Lenders as
expressly provided herein or therein;
(g) change any of the terms of clause (iii) of Section 2.1.4
or Section 2.3.2 without the consent of the Swing Line Lender; or
(h) affect adversely the interests, rights or obligations of
any Agent (in its capacity as such), the Swing Line Lender (in its
capacity as Swing Line Lender) or the Issuer (in its capacity as
Issuer), unless consented to by such Agent, the Swing Line Lender or
the Issuer, as the case may be.
No failure or delay on the part of any Agent, the Issuer or any Lender in
exercising any power or right under this Agreement or any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Borrower or
any other Obligor in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer
or
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any Lender under this Agreement or any other Loan Document shall, except as
may be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
For purposes of this Section 10.1, the Administrative Agent, in
coordination with the Syndication Agent, shall have primary responsibility,
together with the Borrower, in the negotiation, preparation, and documentation
relating to any amendment, modification or waiver of this Agreement, any other
Loan Document or any other agreement or document related hereto or thereto
contemplated pursuant to this Section.
SECTION 10.2. Notices. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the transmitter. Any
term or provision hereof to the contrary notwithstanding, for purposes of this
Agreement and each other Loan Document a "writing" shall include a facsimile.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to
pay on demand all expenses of each of the Agents (including the reasonable fees
and reasonable out-of-pocket expenses of counsel to the Agents and of local
counsel, if any, who may be reasonably retained by counsel to the Agents) in
connection with
(a) the syndication prior to April 30, 1998 by the
Syndication Agent of the Loans, the negotiation, preparation,
execution and delivery of this Agreement and of each other Loan
Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to this
Agreement or any other Loan Document as may from time to time
hereafter be required, whether or not the transactions contemplated
hereby are consummated;
(b) the filing, recording, refiling or rerecording of any
Loan Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any and all
other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or the
terms of any Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save each Secured Party harmless
from all liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the Credit
Extensions hereunder, or the issuance of the Notes, Letters of Credit or any
other Loan Documents. The Borrower also agrees to reimburse each Secured Party
upon demand for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses) incurred by each Secured Party in
connection with (x) the negotiation of any restructuring or "work-out" with the
Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations; provided, that the Borrower
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shall only be obligated to reimburse such legal expenses of one legal firm
representing the Lenders in their capacity as Lenders and the fees and expenses
of one consulting firm engaged by (or on behalf of) the Agents, except to the
extent (in the case of the legal firm) the representation of all of the Lenders
by a single law firm would give rise to a conflict of interest for such firm
(including by way of representing the Agents in their respective capacities as
Agents).
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds each Secured Party and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection with any such action, cause of action or suit
(irrespective of whether any such Indemnified Party is a party to the action
for which indemnification hereunder is sought), including reasonable attorneys'
fees and disbursements, whether incurred in connection with actions between or
among the parties hereto or the parties hereto and third parties (collectively,
the "Indemnified Liabilities"), incurred by the Indemnified Parties or any of
them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of
any determination by the Required Lenders pursuant to Article V not to
fund any Credit Extension), provided that any such action is resolved
in favor of such Indemnified Party;
(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating
to the protection of the environment or the Release by the Borrower or
any of its Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from,
any real property owned or operated by the Borrower or any Subsidiary
thereof of any Hazardous Material (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under
any Environmental Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the
indemnification herein shall survive repayment of the Notes and any
transfer of the property of the Borrower or any of its Subsidiaries by
foreclosure or by a deed in lieu of foreclosure for any Lender's
Environmental Liability, regardless of whether caused by, or within
the control of, the Borrower or such Subsidiary);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence, bad faith or wilful misconduct. Except to the extent of any
Secured Party's gross negligence, bad faith or wilful misconduct, the Borrower
and its successors and assigns hereby waive, release and agree not to make any
claim or bring any cost recovery action against, any
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such Secured Party under CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted. It is expressly understood and agreed that to
the extent that any of such Persons is strictly liable under any Environmental
Laws, the Borrower's obligation to such Person under this indemnity shall
likewise be without regard to fault on the part of the Borrower with respect to
the violation or condition which results in liability of such Person. If and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. Notwithstanding anything to the contrary contained in this
Section 10.4, the Indemnified Parties shall be collectively represented by a
single legal counsel except for any such Indemnified Party that such counsel
may not represent as a result of a conflict of interest.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Sections 9.1 and 10.13, shall in each case survive any assignment from one
Lender to another (in the case of Sections 10.3, 10.4 and 10.13) and any
termination of this Agreement, the payment in full of all the Obligations and
the termination of all the Commitments. The representations and warranties made
by the Borrower and each other Obligor in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be an original and all of which shall constitute together but
one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, the Agents and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO
INTEREST, LOAN CHARGES AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR MORTGAGE HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. This Agreement, the
Notes, the other Loan Documents and the Fee Letters constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and thereof and supersede any prior agreements, written or oral, with
respect thereto.
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SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations
in Loans and Notes. Each Lender may assign, or sell participations in, its
Loans, Letters of Credit and Commitments to one or more other Persons in
accordance with this Section 10.11.
SECTION 10.11.1. Assignments.
(a) With the consent of the Borrower, the Agents and, in the
case of any assignment of participations in Letters of Credit or
Revolving Loan Commitments, the Issuer (provided, that (i) such
consents shall not be unreasonably withheld or delayed and (ii) no
such consents shall be required in the case of any Lender or Issuer
during the continuation of an Event of Default) any Lender may at any
time assign and delegate to one or more commercial banks or other
financial institutions, and
(b) upon notice to the Borrower, the Agents and (in the case
of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuer, any Lender may assign and delegate to
any of its Affiliates or Related Funds or to any other Lender (but
only so long as the same does not result in any increased obligation
of the Borrower pursuant to Section 4.3, 4.4, 4.5, 4.6 or 10.3),
all or any fraction of such Lender's total Loans, participations in Letters of
Credit and Letter of Credit Outstandings with respect thereto and Commitments
in a minimum aggregate amount of $5,000,000 (or, if less, the entire remaining
amount of such Lender's Loans, Letter of Credit Outstandings and Commitments);
or such lesser amount as the Borrower and the Agents may agree; provided,
however, the assigning Lender must assign a pro rata portion of each of its
Loans, Commitments and interest in Letters of Credit Outstandings. Each Obligor
and the Agents shall be entitled to continue to deal solely and directly with a
Lender in connection with the interests so assigned and delegated to an
Assignee Lender until
(c) notice of such assignment and delegation, together with (i)
payment instructions, (ii) the Internal Revenue Service Forms or other
statements contemplated or required to be delivered pursuant to Section 4.6, if
applicable, and (iii) addresses and related information with respect to such
Assignee Lender, shall have been delivered to the Borrower and the Agents by
such assignor Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to the
Borrower and the Agents a Lender Assignment Agreement, accepted by the Agents;
and
(e) the processing fees described below shall have been paid.
From and after the date that the Agents accept such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and
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obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Promptly after its receipt of notice that the Administrative
Agent has received and accepted an executed Lender Assignment Agreement and
request from the Assignee Lender for a Note, but subject to clause (c), the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) a new Note evidencing such Assignee Lender's
assigned Loans and Commitments and, if the assignor Lender has retained Loans
and Commitments hereunder (and if requested by such Lender), a replacement Note
in the principal amount of the Loans and Commitments retained by the assignor
Lender hereunder (such Note to be in exchange for, but not in payment of, the
Note then held by such assignor Lender). Each such Note shall be dated the date
of the predecessor Note. The assignor Lender shall xxxx each predecessor Note
"exchanged" and deliver each of them to the Borrower. Accrued interest on that
part of each predecessor Note evidenced by a new Note, and accrued fees, shall
be paid to the assignor or Assignee Lender as provided in the Lender Assignment
Agreement. Accrued interest on that part of each predecessor Note evidenced by
a replacement Note shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the
predecessor Note and in this Agreement. Such assignor Lender or such Assignee
Lender (unless the Assignor Lender or Assignee Lender is DLJ or any of its
Affiliates) must also pay a processing fee in the amount of $3,500 to the
Administrative Agent upon delivery of any Lender Assignment Agreement. Any
attempted assignment and delegation not made in accordance with this Section
10.11.1 shall be null and void. Notwithstanding anything to the contrary set
forth above, any Lender may (without requesting the consent of the Borrower or
the Administrative Agent) pledge its rights (but not its obligations to make
Loans or participate in Letters of Credit or Letter of Credit Outstandings)
under this Agreement and/or its Loans and/or its Notes hereunder (i) to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) in the case of a Lender that is an investment
fund, to the trustee under the indenture to which such fund is a party in
support of its obligations to such trustee, in either case without notice to or
consent of the Borrower or the Agents; provided, however, that (A) such Lender
shall remain a "Lender" under this Agreement and shall continue to be bound by
the terms and conditions set forth in this Agreement and the other Loan
Documents, and (B) any assignment by such trustee shall be subject to the
provisions of clause (a) of this Section 10.11.1.
(f) In the event that S&P or Xxxxx'x, shall, after the date that any
Person becomes a Lender, downgrade the long-term certificate of deposit ratings
of such Lender, and the resulting ratings shall be below BBB- or Baa3,
respectively, or the equivalent, then the Borrower and each Issuer shall each
have the right, but not the obligation, upon notice to such Lender and the
Administrative Agent, to replace such Lender with a financial institution (a
"Replacement Lender") acceptable to the Borrower and the Administrative Agent
(such consents not to be unreasonably withheld or delayed; provided, that no
such consent shall be required if the Replacement Lender is an existing Lender
(but only so long as the same does not result in any increased obligation of
the Borrower pursuant to Section 4.3, 4.4, 4.5, 4.6 or 10.3)) and meeting the
requirements set forth in clause (a) above, and upon any such downgrading of
any Lender's long-term certificate of deposit rating, each such Lender hereby
agrees to transfer and assign (in accordance with Section 10.11.1) all of its
Commitments, Loans, Notes and other rights and obligations under this Agreement
and all other Loan Documents (including Reimbursement Obligations) to such
Replacement Lender; provided, however, that (i) such assignment shall be
without recourse, representation or warranty (other than that such Lender owns
the Commitments, Loans and Notes being assigned, free and clear of any Liens)
and (ii) the purchase price paid by the Replacement Lender shall be in the
amount of such Lender's Loans and its Percentage of
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outstanding Reimbursement Obligations, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts (other than the
amounts (if any) demanded and unreimbursed under Sections 4.2, 4.3, 4.5 and
4.6, which shall be paid by the Borrower), owing to such Lender hereunder. Upon
any such termination or assignment, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of any provisions of
this Agreement which by their terms survive the termination of this Agreement.
(g) On or promptly after the effective date of an assignment described
in clause (f), the Borrower shall issue a replacement Note or Notes, as the
case may be, to such Replacement Lender and such institution shall become a
"Lender" for all purposes under this Agreement and the other Loan Documents.
SECTION 10.11.2. Participations. Any Lender may sell to one or more
commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "Participant") participating interests in any of
the Loans, Commitments, participations in Letters of Credit and Letter of
Credit Outstandings or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section 10.11 shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor, the Agents and the
Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate
or Related Fund of such Lender or is itself a Lender, shall be
entitled to require such Lender to take or refrain from taking any
action hereunder or under any other Loan Document, except that such
Lender may agree with any Participant that such Lender will not,
without such Participant's consent, take any actions of the type
described in clause (a), (b), or, to the extent requiring the consent
of each Lender, clause (c) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount
under this Agreement that is greater than the amount which it would
have been required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that, subject to clause (e) above, each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and
10.4, shall be considered a Lender. Each Participant shall only be indemnified
for increased costs pursuant to Section 4.3, 4.5 or 4.6, and shall only be
indemnified pursuant to Sections 10.3 and 10.4, if and to the extent that the
Lender which sold such participating interest to such Participant concurrently
is entitled to make, and does make, a claim on the Borrower for such increased
costs or other amounts, as the case may be. Any Lender that sells a
participating interest in any Loan, Commitment or other interest to a
Participant under this Section 10.11.2 shall indemnify and hold harmless the
Borrower and the Agents from and against any taxes, penalties, interest or
other costs or losses (including reasonable attorneys' fees and expenses)
incurred or payable by the Borrower or any Agent as a result of the failure of
the Borrower or such Agent to comply with its obligations to deduct or withhold
any Taxes from any payments made pursuant to this Agreement to such Lender or
such Agent, as the case may be, which Taxes
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would not have been incurred or payable if such Participant had been a Non-U.S.
Lender that was entitled to deliver to the Borrower, such Agent or such Lender,
and did in fact so deliver, a duly completed and valid Form 1001 or 4224 (or
applicable successor form) entitling such Participant to receive payments under
this Agreement without deduction or withholding of any United States federal
taxes.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude the Administrative Agent, the Issuer or any other Lender from engaging
in any transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Affiliates in which the
Borrower or such Affiliate is not restricted hereby from engaging with any
other Person.
SECTION 10.13. Confidentiality. The Lenders shall hold all non-public
information (which shall include all financial information as well as any other
information which has been identified as such by the Borrower) obtained
pursuant to the requirements of, or otherwise in connection with, this
Agreement or any other Loan Document in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure to any of their examiners, and, on a confidential basis, their
Affiliates, outside auditors, counsel and other professional advisors in
connection with this Agreement or as reasonably required by any bona fide
transferee, participant or assignee or as required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition
of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
10.13, each Lender shall require any such bona fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing for the benefit of the Borrower (i) to
be bound by this Section 10.13; and (ii) to require such Person to
require any other Person to whom such Person discloses such non-public
information to be similarly bound by this Section 10.13; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by
the Borrower or any Subsidiary.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE
BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE AGENTS' OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY
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CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, EACH LENDER, THE
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE AGENTS, THE LENDER, THE ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH. EACH SUCH PERSON ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, EACH LENDER AND THE ISSUER ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.16. Termination. This Agreement and the other Loan
Documents and all of the covenants, agreements and other obligations of the
Borrower and the other Obligors hereunder and thereunder (other than such
Obligations set forth in Section 10.4 and all other such Obligations which by
their terms expressly survive any such termination) shall terminate when all
the Commitments have expired or terminated, all then accrued or due and payable
monetary Obligations have been paid in full and all Letters of Credit have
expired or terminated (or the Issuer shall have received cash (in a cash
collateral account on terms reasonably satisfactory to the Issuer) in the
amount of all Letter of Credit Outstandings).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
MEDAPHIS CORPORATION
By:
-----------------------------------------
Title:
Address: 0000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer, with a
copy to the General Counsel (Facsimile No.:
(000) 000-0000)
DLJ CAPITAL FUNDING, INC,
as the Syndication Agent and as a Lender
By:
-----------------------------------------
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Paradise
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WACHOVIA BANK, N.A.,
as the Administrative Agent and as a Lender
By:
-----------------------------------------
Title:
Address: 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Structured Finance -- Cash Flow
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EXHIBIT A-1
REVOLVING NOTE
$25,000,000.00 February 20, 1998
FOR VALUE RECEIVED, the undersigned, MEDAPHIS CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of WACHOVIA BANK,
N.A., (the "Lender") on the Stated Maturity Date (as defined in the Credit
Agreement referred to below) the principal sum of TWENTY-FIVE MILLION DOLLARS
($25,000,000.00) or, if less, the aggregate unpaid principal amount of all
Revolving Loans shown on the schedule attached hereto (and any continuation
thereof) made by the Lender pursuant to that certain Credit Agreement, dated as
of February 20, 1998 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the various financial institutions as are or may from time to time
become parties thereto, DLJ Capital Funding, Inc., as Syndication Agent, and
Wachovia Bank, N.A., as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Note is one of the Revolving Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings
provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
88
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
MEDAPHIS CORPORATION
By: _________________________________
Title:
89
REVOLVING LOANS AND PRINCIPAL PAYMENTS
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Amount of Revolving Amount of Principal Unpaid Principal
Loan Made Repaid Balance
--------------------- Interest -----------------------------------------
Base LIBO Period Base LIBO Base LIBO Notation
Date Rate Rate (If Applicable) Rate Rate Rate Rate Total Made By
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90
EXHIBIT A-2
SWING LINE NOTE
$7,500,000.00 February 13, 1998
FOR VALUE RECEIVED, the undersigned, MEDAPHIS CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of WACHOVIA BANK,
N.A. (the "Swing Line Lender") on the Stated Maturity Date (as defined in the
Credit Agreement referred to below) the principal sum of SEVEN MILLION FIVE
HUNDRED THOUSAND DOLLARS ($7,500,000.00) or, if less, the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line Lender pursuant
to that certain Credit Agreement, dated as of February 13, 1998 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the various financial institutions as
are or may become parties thereto, DLJ Capital Funding, Inc., as Syndication
Agent and Wachovia Bank, N.A., as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Swing Line Lender pursuant to the Credit Agreement.
This Swing Line Note is the Swing Line Note referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Swing Line Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Indebtedness evidenced by
this Swing Line Note and on which such Indebtedness may be declared to be
immediately due and payable.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
91
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
MEDAPHIS CORPORATION
By:
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Title:
92
SWING LINE LOANS AND PRINCIPAL PAYMENTS
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of Swing Amount of Outstanding
Line Principal Principal Notation
Date Loan Made Repaid Balance Total Made By
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