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$200,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 24, 1997
AMONG
ON COMMAND CORPORATION
AS THE BORROWER
AND
THE LENDERS NAMED HEREIN
AND
NATIONSBANK OF TEXAS, N.A.
AS THE ADMINISTRATIVE AGENT
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EXHIBITS AND SCHEDULES
----------------------
EXHIBITS
--------
Exhibit A - Form of Administrative Questionnaire
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Borrowing Request
Exhibit D-1 - Form of Competitive Bid Request
Exhibit D-2 - Form of Notice of Competitive Bid Request
Exhibit D-3 - Form of Competitive Bid
Exhibit D-4 - Form of Competitive Accept/Reject Letter
Exhibit E - Form of Application for a Letter of Credit
Exhibit F - Form of Compliance Certificate
SCHEDULES
---------
Schedule 1.01 - Unrestricted Subsidiaries
Schedule 3.08 - Subsidiaries
Schedule 3.09 - Litigation
Schedule 3.10 - Restrictive Material Agreements
Schedule 3.18 - Insurance
Schedule 3.20 - Environmental Matters
Schedule 6.01 - Subsidiary Indebtedness
Schedule 6.02 - Liens
Schedule 6.04 - Investments
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. TERMS, GENERALLY . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE II
THE CREDITS
SECTION 2.01. REVOLVING LOANS. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.02. LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.03. COMPETITIVE BID PROCEDURE. . . . . . . . . . . . . . . . . . . 23
SECTION 2.04. BORROWING PROCEDURE. . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.05. EVIDENCE OF DEBT; REPAYMENT OF LOANS . . . . . . . . . . . . . 25
SECTION 2.06. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.07. INTEREST ON LOANS. . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.08. DEFAULT INTEREST . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. ALTERNATE RATE OF INTEREST . . . . . . . . . . . . . . . . . . 29
SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENT; EXTENSION OF THE
REVOLVING LOAN MATURITY DATE . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.11. CONVERSION AND CONTINUATION OF BORROWINGS. . . . . . . . . . . 31
SECTION 2.12. PREPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. . . . . . . . . 34
SECTION 2.14. CHANGE IN LEGALITY . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.15. INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.16. PRO RATA TREATMENT . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.17. SHARING OF SETOFFS . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.18. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.19. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.20. ASSIGNMENT OF COMMITMENT UNDER CERTAIN CIRCUMSTANCES;
DUTY TO MITIGATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 2.21. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. ORGANIZATION; POWERS . . . . . . . . . . . . . . . . . . . . . 47
SECTION 3.02. AUTHORIZATION. . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 3.03. ENFORCEABILITY . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 3.04. GOVERNMENTAL APPROVALS . . . . . . . . . . . . . . . . . . . . 48
SECTION 3.05. FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . 48
SECTION 3.06. NO MATERIAL ADVERSE CHANGE . . . . . . . . . . . . . . . . . . 48
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES . . . . . . . . . 49
SECTION 3.08. SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . 49
SECTION 3.10. AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.11. FEDERAL RESERVE REGULATIONS. . . . . . . . . . . . . . . . . . 50
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.13. USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.14. TAX RETURNS. . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3.15. NO MATERIAL MISSTATEMENTS. . . . . . . . . . . . . . . . . . . 51
SECTION 3.16. EMPLOYEE BENEFIT PLANS . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.17. SOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.18. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 3.19. LABOR MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.20. ENVIRONMENTAL MATTERS. . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. . . . . . . . 53
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. ALL CREDIT EVENTS. . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 4.02. FIRST CREDIT EVENT . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES . . . . . . . . . . . . . 56
SECTION 5.02. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 5.03. OBLIGATIONS AND TAXES. . . . . . . . . . . . . . . . . . . . . 56
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC.. . . . . . . . . . . . . . 57
SECTION 5.05. LITIGATION AND OTHER NOTICES . . . . . . . . . . . . . . . . . 58
SECTION 5.06. EMPLOYEE BENEFITS. . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.08. USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS . . . . . . . . . . . . . . 59
SECTION 5.10. COMPLIANCE WITH MATERIAL CONTRACTS . . . . . . . . . . . . . . 59
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. INDEBTEDNESS OF THE BORROWER AND THE RESTRICTED
SUBSIDIARIES OF THE BORROWER . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.02. LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.03. SALE AND LEASE BACK TRANSACTIONS; OFF-BALANCE SHEET
FINANCINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.04. INVESTMENTS, ACQUISITIONS, LOANS AND ADVANCES. . . . . . . . . 62
SECTION 6.05. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. . . . . . . . . . 63
SECTION 6.06. DIVIDENDS AND DISTRIBUTIONS; RESTRICTIONS ON ABILITY OF
SUBSIDIARIES TO PAY DIVIDENDS. . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.07. TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . 64
SECTION 6.08. LIMITATION ON RESTRICTIVE AGREEMENTS . . . . . . . . . . . . . 64
SECTION 6.09. LEVERAGE RATIO . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 6.10. COVERAGE RATIO . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 6.11. AMENDMENTS TO ORGANIZATIONAL DOCUMENTS. . . . . . . . . . . . 65
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.02. SURVIVAL OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.03. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.04. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.05. EXPENSES; INDEMNITY. . . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.06. RIGHT OF SETOFF. . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.07. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.08. WAIVERS; AMENDMENT . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.09. INTEREST RATE LIMITATION . . . . . . . . . . . . . . . . . . . 79
SECTION 9.10. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 9.11. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . 80
SECTION 9.12. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 9.13. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 9.14. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. . . . . . . . . . 80
SECTION 9.16. CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 9.17. AMENDMENT, RESTATEMENT, EXTENSION AND RENEWAL. . . . . . . . . 82
ON COMMAND CORPORATION
$200,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"),
dated as of November 24, 1997, among ON COMMAND CORPORATION, a Delaware
corporation (the "Borrower"), the Lenders (as defined in Article I hereof),
and NATIONSBANK OF TEXAS, N.A., a national banking association, as issuing
bank (in such capacity, the "Issuing Bank"), and as administrative agent (in
such capacity, the "Administrative Agent") for the Lenders.
WHEREAS, the Borrower and Lenders entered in to that certain Credit
Agreement dated as of October 8, 1996 in the maximum principal amount of
$125,000,000 (Credit Agreement, as amended and increased to $150,000,000 by
that certain First Amendment to Credit Agreement, dated as of March 23, 1997,
and as amended, restated or modified thereafter, the "Existing Credit
Agreement");
WHEREAS, the Borrower has requested the Lenders to amend and restate the
Existing Credit Agreement to provide for a loan facility in the aggregate
maximum amount of $200,000,000, consisting of Revolving Loans (such term and
each other capitalized term used but not defined herein having the meaning
given it in Article I hereof), at any time and from time to time prior to the
Maturity Date, in an aggregate principal amount at any time outstanding not
in excess of $200,000,000 (which under certain circumstances, may be used for
Competitive Bid Loans and of which not more than $10,000,000 may be used for
Letters of Credit), the proceeds of which will be used to repay indebtedness
under the Existing Credit Agreement and otherwise in accordance with the
terms and conditions of this Agreement.
The Lenders are willing to extend a $200,000,000 aggregate credit
facility to the Borrower in the form of either Revolving Loans, Competitive
Bid Loans or Letters of Credit, as elected by the Borrower, in each case on
the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate Base
Rate in accordance with the provisions of Article II hereof.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, a simple per annum interest rate equal to
the lesser of (a) the Highest Lawful Rate and (b) the sum of (i) the quotient
of (x) the LIBO Rate divided by (y) one minus the LIBOR Reserve Percentage,
stated as a decimal, plus (ii) the Applicable Percentage. The Adjusted LIBO
Rate shall apply to Interest Periods of one, two, three or six months, or, if
determined available by the Administrative Agent, twelve months. The
Adjusted LIBO Rate shall be subject to availability with respect to the
Lenders and to Section 2.14 hereof. Once determined, the Adjusted LIBO Rate
shall remain unchanged during the applicable Interest Period, except for
changes to reflect adjustments in the LIBOR Reserve Percentage and changes in
Applicable Percentage.
"Administrative Agent Fees" shall have the meaning assigned to such term
in Section 2.06(b) hereof.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A hereto.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the lesser of (a) the
Highest Lawful Rate and (b) sum of (i) the Applicable Percentage, plus (ii) the
greater of (A) the Prime Rate in effect on such day, and (B) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (B) of the preceding sentence, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its office in Dallas, Texas; each change in the Prime
Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, 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 on the next succeeding Business Day by the
Federal Reserve Bank of Dallas, Texas or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for the day
for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Applicable Law" shall mean (a) in respect of any Person, all provisions
of Laws of tribunals applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party and (b) in respect of contracts made or performed in the
State of Texas, "Applicable Law" also means the laws of the United States of
America, including, without limiting the foregoing, 12 USC Sections 85 and
86, as amended to the date hereof and as the same may be amended at any time
and from time to time hereafter, and any other statute of the United States
of America now or at any time hereafter prescribing the maximum rates of
interest on loans and extensions of credit, and the laws of the State of
Texas, including, without limitations, Article 5069-1H, Title 79, Revised
Civil Statutes of Texas, 1925, ("Art. 1H"), as amended, if applicable, and if
Art. 1H is not applicable, Article 5069-1D, Title 79, Revised Civil Statutes
of Texas, 1925, ("Art. 1D"), as amended, and any other statute of the State
of Texas now or at any time hereafter prescribing maximum rates of interest
on loans and extensions of credit; provided however, that pursuant to Article
5069-15.10(b), Title 79, Revised Civil Statutes of Texas, 1925, as amended,
the Borrower agrees that the provisions of Chapter 15, Title 79, Revised
Civil Statutes of Texas, 1925, as amended, shall not apply to the Loans or
Competitive Bid Loans hereunder.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan (other than any Eurodollar Competitive Loan), the
applicable percentage set forth below under the caption "Eurodollar Margin"
or "ABR Margin", as the case may be, based upon the Leverage Ratio, then in
effect for purposes hereof:
Eurodollar ABR
Leverage Ratio Margin Margin
-------------- ---------- ------
Category 1 0.750% 0%
----------
Greater than or equal
to 2.50 to 1.00
Category 2 0.625% 0%
----------
Greater than or equal to
2.00 to 1.00 but less than
2.50 to 1.00
Category 3 0.500% 0%
----------
Greater than or equal to
1.00 to 1.00 but less than
2.00 to 1.00
Category 4 0.375% 0%
----------
Less than 1.00 to 1.00
Except as set forth below, the Leverage Ratio utilized for purposes of
determining the Eurodollar Margin and ABR Margin shall be that in effect as
of the last day of the most recent fiscal quarter of the Borrower in respect
of which financial statements have been delivered pursuant to this Agreement.
From the date hereof until the earliest to occur of the initial delivery of
financial statements pursuant to Section 5.04(a) or (b) hereof, the
Borrower's failure to timely deliver such financial statements or the
occurrence of an Event of Default, the Leverage Ratio shall be deemed to be
within Category 1 above. The Applicable Percentage from time to time in
effect shall be based on the Leverage Ratio from time to time in effect, and
each change in the Applicable Percentage resulting from a change in (or the
initial establishment of) the Leverage Ratio shall be effective with respect
to all Loans, the Commitment and Letters of Credit outstanding on and after
the date of delivery to the Administrative Agent of the financial statements
and certificates required by Section 5.04(a) or (b) hereof indicating such
change to and including the date immediately preceding the next date of
delivery of such financial statements and certificates indicating another
such change. Notwithstanding the foregoing, (a) at any time during which the
Borrower has failed to deliver the financial statements and certificates
required by Section 5.04(a) or (b) hereof, or (b) at any time after the
occurrence and during the continuance of an Event of Default, the Leverage
Ratio shall be deemed to be in Category 1 above for purposes of determining
the Applicable Percentage.
"APPLICATION" shall mean any stand-by letter of credit application
delivered to the Administrative Agent for or in connection with any Letter of
Credit pursuant to Section 2.21 hereof, in the Administrative Agent's
standard form for stand-by letters of credit, the form of which, on the
Closing Date, is attached as EXHIBIT E hereto.
"ART. 1D" has the meaning specified in the definition herein of
"Applicable Law".
"ART. 1H" has the meaning specified in the definition herein of
"Applicable Law".
"ASCENT" shall mean Ascent Entertainment Group, Inc., a Delaware
corporation and majority owner of the Borrower.
"ASCENT AGREEMENTS" shall mean the Services Agreement, the Corporate
Agreement and the Tax Sharing Agreement, in each case between the Borrower
and Ascent, in the forms delivered to the Administrative Agent, as such
agreements may hereafter be amended as permitted by, and in accordance with,
the provisions of this Agreement.
"ASSET DISPOSITION" shall have the meaning assigned to it in Section
6.05(b) hereof.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of EXHIBIT B hereto or such other form as shall be
approved by the Administrative Agent.
"ATTRIBUTABLE DEBT" shall mean as of any date of determination, the
present value (discounted semiannually at the interest rate set forth or
implicit in the terms of such transaction, as determined by the principal
accounting or financial officer of the Borrower) of the obligation of a
lessee for rental payments pursuant to any Equipment Lease Transaction during
the remaining term of such Equipment Lease Transaction (including any period
for which the lease relating thereto has been extended), such rental payments
not to include amounts payable by the lessee for maintenance and repairs,
insurance, taxes, assessments and similar charges.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWING" shall mean Loans of a single Type made by the Lenders in
accordance with the terms hereof (or, in the case of a Competitive Borrowing,
by the Lender or Lenders whose Competitive Bids have been accepted pursuant
to Section 2.03 hereof) on a single date and as to which a single Interest
Period is in effect.
"BORROWING REQUEST" shall mean a request by the Borrower in accordance
with the terms of Section 2.04 hereof and substantially in the form of
EXHIBIT C hereto.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or day
on which banks in Dallas, Texas or New York, New York are authorized or
required by Law to close; provided, however, that when used in connection
with a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"CAPITAL STOCK" shall mean, as to any Person, the equity interests in
such Person, including, without limitation, the shares of each class of
capital stock of any Person that is a corporation and each class of
partnership interests (including without limitation, general, limited and
preference units) in any Person that is a partnership.
A "CHANGE IN CONTROL" shall be deemed to have occurred if (a) any Person
or group of affiliated Persons owns or controls in the aggregate a greater
percentage of the ordinary voting Capital Stock of the Borrower than Ascent,
or (b) Ascent shall fail to control a majority of the seats on the Board of
Directors of the Borrower.
"CLOSING DATE" shall mean the date of the first Credit Event.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" shall mean $200,000,000, (a) as the same may be reduced
from time to time pursuant to Section 2.10 hereof and (b) and with respect to
each Lender, the commitment of the Lenders to make Revolving Loans hereunder
in its Pro Rata Percentage of the Commitment as set forth next to its
signature on the signature pages of this Agreement as the same may be reduced
from time to time pursuant to Section 2.20 hereof, or in any Assignment and
Acceptance executed in accordance with this Agreement, as applicable.
"COMMITMENT FEE" shall have the meaning assigned to such term in Section
2.06(d) hereof.
"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03(b) hereof in the form of EXHIBIT D-3 hereto.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) hereof in the form of EXHIBIT D-4
hereto.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid, (i) in the
case of a Eurodollar Loan, the Margin, and (ii) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Lender making such
Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made by the Borrower
pursuant to Section 2.03(a) hereof in the form of EXHIBIT D-1 hereto.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such
Borrowing have been accepted by the Borrower under the bidding procedure
described in Section 2.03 hereof, which such Borrowings shall only be
permitted to be made if, and only for so long as, the Leverage Ratio is less
than 2.50 to 1.00.
"COMPETITIVE LOAN" shall mean a loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.03 hereof, which
such loans shall only be permitted if, and only for so long as, the Leverage
Ratio is less than 2.50 to 1.00. Each Competitive Loan shall be a Eurodollar
Competitive Loan or a Fixed Rate Loan.
"COMPLIANCE CERTIFICATE" shall mean a compliance certificate,
substantially in the form of EXHIBIT F hereto, and certifying that there
exists no Default or Event of Default at the time of delivery thereof.
"CONSOLIDATED ASSETS" shall mean, with respect to the Borrower and its
Restricted Subsidiaries, at any date, the consolidated total assets of the
Borrower and its Restricted Subsidiaries at such date, as determined in
accordance with GAAP.
"CONSOLIDATED CASH INTEREST EXPENSE" shall mean, for any period of
determination, the gross interest expense of the Borrower and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, excluding any amounts paid other than in cash or not required
(whether during or after such period) to be paid in cash. For purposes of
the foregoing, gross interest expense shall be determined after giving effect
to any net cash payments made or received by the Borrower with respect to
rate protection agreements entered into as a hedge against interest rate
exposure. Gross interest expense shall be calculated in accordance with GAAP
as in effect and applied by the Borrower on the date of this Agreement and,
accordingly, shall exclude the effects of any changes in GAAP or its
application by the Borrower after the date hereof.
"CONSOLIDATED LIABILITIES" shall mean, with respect to the Borrower and
its Restricted Subsidiaries, at any date, the consolidated total liabilities
of the Borrower and its Restricted Subsidiaries at such date, as determined
in accordance with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" shall mean, at any date, with respect to
the Borrower and its Restricted Subsidiaries on a consolidated basis,
Consolidated Assets excluding all assets which would be classified as
intangibles under GAAP, including goodwill (whether representing the excess
of cost over book value of assets acquired or otherwise), organizational
expenses, trademarks, trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and treasury stock held as an asset.
"CONSOLIDATED TANGIBLE NET WORTH" shall mean, at any date, with respect to
the Borrower and its Restricted Subsidiaries on a consolidated basis, the excess
of the Consolidated Assets over Consolidated Liabilities excluding, however,
from the determination of Consolidated Assets (a) all assets which would be
classified as intangibles under GAAP, including goodwill (whether
representing the excess of cost over book value of assets acquired or
otherwise), organizational expenses, trademarks, trade names, copyrights,
patents, patent applications, licenses and rights in any thereof and (b)
treasury stock held as an asset.
"CONSOLIDATED TOTAL INDEBTEDNESS" shall mean, for any Person, all
Indebtedness of such Person and its consolidated subsidiaries (other than
Indebtedness referred to in clause (h) of the definition of such term, and
excluding obligations of such Person with respect to deposits with such
Person or advances to such Person of any kind, up to a maximum aggregate
amount of $2,000,000), determined on a consolidated basis in accordance with
GAAP.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling and "Controlled" shall have meanings correlative
thereto.
"COVERAGE RATIO" shall mean, on any date for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the ratio of (a) EBITDA for
the four most recently completed consecutive fiscal quarters, to (b)
Consolidated Cash Interest Expense of the Borrower and its Restricted
Subsidiaries for the four most recently completed consecutive fiscal quarters.
"CREDIT EVENT" shall have the meaning assigned to such term in Section
4.01 hereto.
"DEBTOR RELIEF LAWS" shall mean applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the
enforcement of creditors' rights generally.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with respect to any Person and its subsidiaries on
a consolidated basis for any period, the consolidated net income of such
Person and its subsidiaries for such period, computed in accordance with
GAAP, plus, to the extent deducted in computing such consolidated net income
and without duplication, the sum of (a) income tax expense, (b) interest
expense, (c) depreciation and amortization expense, (d) allocation of income
to minority interests in earnings of consolidated subsidiaries and (e)
extraordinary losses (including restructuring provisions) during such period
minus, to the extent added in computing such consolidated net income and
without duplication, (y) extraordinary gains during such period and (z)
allocation of losses to minority interests in earnings of consolidated
subsidiaries. EBITDA shall be calculated in accordance with GAAP as in
effect and applied by the Borrower on the date of this Agreement and,
accordingly, shall exclude the effects of any changes in GAAP or its
application by the Borrower after the date hereof.
"ENVIRONMENT" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"EQUIPMENT LEASE TRANSACTION" shall mean any transaction or arrangement
(other than (a) a Capital Lease Obligation reflected as such on the
consolidated financial statements of the Borrower or (b) an operating lease)
(i) pursuant to which the Borrower or any of its Restricted Subsidiaries
sells or transfers any equipment or fixtures used or useful in its business,
whether now owned or hereafter acquired, to any other Person, and thereafter
rents or leases such property or other property which it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred or (ii) pursuant to which the Borrower or any of its Restricted
Subsidiaries rents or leases from any other Person any equipment or fixtures
used or useful in its business and which, although not required to be
accounted for as a Capital Lease Obligation, in substance represents the
financing of the acquisition of such property by the Borrower or such
Restricted Subsidiary.
"ENVIRONMENTAL CLAIM" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, consent decree, cost
recovery action or other cause of action by, or on behalf of, any
Governmental Authority or any Person for damages, injunctive or equitable
relief, personal injury (including sickness, disease or death), Remedial
Action costs, tangible or intangible property damage, natural resource
damages, nuisance, pollution, any adverse effect on the Environment caused by
any Hazardous Material, or for fines, penalties or restrictions, resulting
from or based upon: (a) the existence, or the continuation of the existence,
of a Release (including sudden or non-sudden, accidental or non-accidental
Releases); (b) exposure to any Hazardous Material; (c) the presence, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Material; or (d) the violation or alleged violation of any Environmental Law
or Environmental Permit.
"ENVIRONMENTAL LAW" shall mean any and all applicable present and future
treaties, Laws, codes, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating
in any way to the Environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any Hazardous
Material or to health and safety matters, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sections
9601 ET SEQ. (collectively "CERCLA"), the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. Sections 6901 ET SEQ., the
Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977, 33 U.S.C. Sections 1251 ET SEQ., the Clean Air Act of 1970, 42 U.S.C.
Sections 7401 ET SEQ., as amended, the Toxic Substances Control Act of 1976,
15 U.S.C. Sections 2601 ET SEQ., the Occupational Safety and Health Act of
1970, as amended by 29 U.S.C. Sections 651 ET SEQ., the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001 ET SEQ.,
the Safe Drinking Water Act of 1974, as amended by 42 U.S.C. Sections 300(f)
ET SEQ., the Hazardous Materials Transportation Act, 49 U.S.C. Sections 5101
ET
SEQ., and any similar or implementing state or local law, and all amendments
or regulations promulgated thereunder.
"ENVIRONMENTAL PERMIT" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (c) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (d) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA upon the termination of any Plan or the
withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the
Borrower or any ERISA Affiliate from the PBGC of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (g) the receipt by the Borrower or any ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA; and (h) the
occurrence of a "prohibited transaction" with respect to which the Borrower
or any of its Restricted Subsidiaries is a "disqualified person" (within the
meaning of Section 4975 of the Code) or with respect to which the Borrower or
any such Restricted Subsidiary could otherwise be liable.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR COMPETITIVE BORROWING" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"EURODOLLAR COMPETITIVE LOAN" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance
with the provisions of Article II.
"EURODOLLAR LOAN" shall mean any Eurodollar Revolving Loan or Eurodollar
Competitive Loan.
"EURODOLLAR REVOLVING LOANS" shall mean Revolving Loans bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance
with the provisions of Article II hereof.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VII hereof.
"EXISTING CREDIT AGREEMENT" shall have the meaning assigned to such term
in the preamble to this Agreement.
"FACILITY FEE" shall have the meaning assigned to such term in Section
2.06(a) hereof.
"FEE LETTERS" shall mean those certain Fee Letter[s] dated as of the
Closing Date between the Borrower and the Administrative Agent, and any other
fee letters executed from time to time among any of the Borrower, the
Administrative Agent and the Lenders, as each may be amended, extended,
increased, revised or substituted from time to time.
"FEES" shall mean the Facility Fees, the Commitment Fees, the
Administrative Agent Fees, the L/C Participation Fees and the Issuing Bank
Fees.
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"FIXED RATE BORROWING" shall mean a Competitive Borrowing, comprised of
Fixed Rate Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no
more than four decimal places) specified by the Lender making such Loan in
its Competitive Bid.
"FREE CASH FLOW" shall mean for the Borrower and its Restricted
Subsidiaries on a consolidated basis, EBITDA from the Closing Date through
the date of determination (the "Determination Period") minus the sum of
Consolidated Cash Interest Expense, plus consolidated cash taxes paid plus
capital expenditures made, in each case for the Determination Period.
Notwithstanding anything herein or in any other Loan Paper to the contrary,
fiscal quarters of the Borrower with negative Free Cash Flow shall be
excluded from the calculation of "Free Cash Flow".
"GAAP" shall mean generally accepted accounting principles.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"GUARANTEE" of or by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment of
such Indebtedness, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (d) to guaranty the
obligations, payments by or performance of, a Person that is not a wholly
owned direct or indirect subsidiary of the Borrower; PROVIDED, HOWEVER, that
the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"GUARANTORS" shall mean all Restricted Subsidiaries of the Borrower.
"HAZARDOUS MATERIALS" shall mean all explosive or radioactive substances
or wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid
or gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
"HIGHEST LAWFUL RATE" shall mean at the particular time in question the
maximum rate of interest which, under Applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest
which, under Applicable Law, any Lender is permitted to charge on the
Obligations shall change after the date hereof, the Highest Lawful Rate shall
be automatically increased or decreased, as the case may be, from time to
time as of the effective time of each change in the Highest Lawful Rate
without notice to the Borrower. For purposes of determining the Highest
Lawful Rate under Applicable Law, the weekly ceiling shall be (a) the weekly
ceiling described in and computed in accordance with the provisions of Art.
1H, or (b) either the annualized ceiling or quarterly ceiling computed
pursuant to Section .008 of Art. 1D; PROVIDED, HOWEVER, that at any time the
indicated rate ceiling, the annualized ceiling or the quarterly ceiling, as
applicable, shall be less than 18% per annum or more than 24% per annum, the
provisions of Sections .009(a), .009(b) or .009(c) of said Art. 1D shall
control for purposes of such determination, as applicable.
"INDEBTEDNESS" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits
with such Person or advances to such Person of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(d) all obligations of such
Person issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable and accrued obligations incurred
in the ordinary course of business, and excluding any obligations relating to
operating leases), (e) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (f)
all Guarantees by such Person, (g) all Capital Lease Obligations of such
Person, (h) all net obligations of such Person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest
or exchange rate hedging arrangements and (i) all obligations of such Person
as an account party in respect to letters of credit and bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any
partnership in which such Person is a general partner.
"INTEREST PAYMENT DATE" shall mean the last day of the Interest Period
applicable to the Borrowing or Competitive Borrowing of which such
Competitive Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day that would have
been an Interest Payment Date had successive Interest Periods of three
months' duration been applicable to such Borrowing, and, in addition, the
date of any prepayment of such Borrowing or conversion of such Borrowing to a
Borrowing of a different Type.
"INTEREST PERIOD" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, or if
determined available by the Administrative Agent, 12 months thereafter, as
the Borrower may elect, (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Revolving
Loan Maturity Date, as applicable, and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.11
hereof or repaid or prepaid in accordance with Section 2.12 hereof and (c) as
to any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in which
the offers to make the Fixed Rate Loans comprising such Borrowing were
extended, which shall not be earlier than seven days after the date of such
Borrowing or later than 360 days after the date of such Borrowing; PROVIDED,
HOWEVER, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day. Interest shall
accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"ISSUING BANK" shall mean NationsBank (or any Affiliate thereof) or any
other Lender that may become an Issuing Bank pursuant to Section 2.21(i)
hereof, in each case with respect to Letters of Credit issued by it.
"ISSUING BANK FEES" shall have the meaning assigned to such term in
Section 2.06(c) hereof.
"LAW" shall mean any constitution, statute, law, ordinance, regulation,
rule, order, writ, injunction, or decree of any tribunal.
"L/C COMMITMENT" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.21 hereof.
"L/C DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Lender at any time shall
mean its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C PARTICIPATION FEE" shall have the meaning assigned to such term in
Section 2.06(c) hereof.
"LENDERS" shall mean (a) the financial institutions listed on the
signature pages hereof (other than any such financial institution that has
ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b)
any financial institution that has become a party hereto pursuant to an
Assignment and Acceptance.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant to
Section 2.21 hereof.
"LEVERAGE RATIO" shall mean, on any date for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the ratio of (a) the
Borrower's and its Restricted Subsidiaries' Consolidated Total Indebtedness
to (b) EBITDA of the Borrower and its consolidated Restricted Subsidiaries
for the most recently completed four fiscal quarters.
"LIBO RATE" shall mean, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest one-one hundredth (1/100th) of one percent (1%)) appearing on
Telerate Page 3750 (or any successor page) as the London interbank offered
rate for deposits in United States dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period. If for any reason such rate is not available, the term "LIBO Rate"
shall mean, for any Eurodollar Borrowing for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest one-one
hundredth (1/100th) of one percent (1%)) appearing on Reuters Screen LIBO
page as the London interbank offered rate for deposits in United States
dollars at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period; PROVIDED, HOWEVER, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean
of all such rates.
"LIBOR RESERVE PERCENTAGE" shall mean, with respect to any Interest
Period, the percentage which is in effect on the first day of such period
under Regulation D of the Board of Governors of the Federal Reserve System,
as such regulation may be amended from time to time, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency or marginal reserves) with respect to eurocurrency liabilities (as
that term is defined in Regulation D), applicable to any Lender. The
Adjusted LIBO Rate for any Eurodollar Borrowing shall be adjusted for any
change in the LIBOR Reserve Percentage.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such
securities.
"LOANS" shall mean the Revolving Loans made in accordance with the terms
of this Agreement.
"LOAN PAPERS" shall mean this Agreement, the promissory notes evidencing
the Loans and Competitive Loans, all guaranties executed by the Guarantors,
Fee Letters, all Letters of Credit, all Applications and all other agreements
between the Borrower or any Subsidiary of the Borrower and the Administrative
Agent related to any Letter of Credit, Assignment and Acceptances,
post-closing letters, and all other documents, instruments, agreements, or
certificates executed or delivered from time to time by any Person in
connection with this Agreement or as security for the Obligations hereunder,
as each such agreement may be amended, modified, substituted, replaced or
extended from time to time.
"MARGIN" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Competitive Loan, as
specified in the Competitive Bid relating to such Competitive Loan.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse effect on
the business, assets, operations, or financial condition of the Borrower and
its Restricted Subsidiaries taken as a whole, (b) material impairment of the
ability of the Borrower to perform any of its obligations under this
Agreement or under any other Loan Paper or (c) material impairment of the
enforceability of this Agreement, any other Loan Paper, the Loans or the
Competitive Loans.
"MAXIMUM AMOUNT" means the maximum amount of interest which, under
Applicable Law, Administrative Agent or any Lender is permitted to charge on
the Obligations.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NATIONSBANK" shall mean NationsBank of Texas, N.A., a national banking
association.
"NET CASH PROCEEDS" shall mean with respect to any Asset Disposition the
gross amount of any cash paid to or received by the Borrower or any of its
Restricted Subsidiaries in respect of such Asset Disposition (including (a)
payments of principal or interest, or cash proceeds from the sale or other
disposition in respect of noncash consideration permitted under Section 6.05
hereof, and (b) insurance proceeds, condemnation awards and payments from
time to time in respect of installment obligations, if applicable), minus the
sum of the amount, if any, of (i) the Borrower's good faith best estimate of
all taxes attributable to such Asset Disposition which it in good faith
expects to be paid in the taxable year in which such Asset Disposition shall
occur or in the next taxable year, (ii) reasonable and customary fees,
discounts, commissions, costs and other expenses (other than those payable to
the Borrower or any Affiliate of the Borrower), which are incurred in
connection with such Asset Disposition and are payable by the Borrower or any
of its Restricted Subsidiaries, (iii) in the case of an Asset Disposition
that is a sale, transfer or other disposition of assets or properties,
proceeds required to discharge Liens in respect of such assets or properties
permitted by Section 6.02 hereof, and (iv) reserves established in connection
with such Asset Disposition and in accordance with GAAP, in each case (A) up
to a maximum amount per Asset Disposition equal to 25% of the gross proceeds
from such Asset Disposition and (B) for no longer than one year after each
such Asset Disposition.
"OBLIGATIONS" shall mean all present and future obligations,
indebtedness and liabilities, and all renewals and extensions of all or any
part thereof, of the Borrower and each Obligor to the Lenders and the
Administrative Agent arising from, by virtue of, or pursuant to this
Agreement, any of the other Loan Papers and any and all renewals and
extensions thereof or any part thereof, or future amendments thereto, all
interest accruing on all or any part thereof and reasonable attorneys' fees
incurred by the Administrative Agent for the preparation of this Agreement
and consummation of this credit facility, execution of waivers, amendments
and consents, and in connection with the enforcement or the collection of all
or any part thereof, and reasonable attorneys' fees incurred by the Lenders
in connection with the enforcement or the collection of all or any part of
the Obligations during the continuance of an Event of Default, in each case
whether such obligations, indebtedness and liabilities are direct, indirect,
fixed, contingent, joint, several or joint and several. Without limiting the
generality of the foregoing, "Obligations" includes all amounts which would
be owed by the Borrower, each other Obligor and any other Person (other than
the Administrative Agent or the Lenders) to the Administrative Agent or the
Lenders under any Loan Paper, but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower, any other Obligor or any other Person
(including all such amounts which would become due or would be secured but
for the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
"OBLIGOR" shall mean (a) the Borrower, (b) each Guarantor, (c) each
other Person liable for performance of any of the Obligations and (d) each
other Person the property of which hereafter secures the performance of any
of the Obligations.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States of America), in each case maturing
within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Group, a
Division of XxXxxx-Xxxx, Inc. or from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any Lender or any commercial
bank which bank or office is organized under the Laws of the United States of
America or any State thereof which has a combined capital and surplus and
undivided profits of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for underlying securities of the type described in clause (a)
above entered into with any institution meeting the qualifications specified
in clause (c) above.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency
or political subdivision thereof.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
112 of the Code or Section 307 of ERISA and in respect of which the Borrower
or any ERISA Affiliate is (or if such plan were terminated would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"PREFERRED STOCK", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution or assets
upon any voluntary or involuntary liquidation or dissolution of any such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PRO RATA PERCENTAGE" of any Lender at any time shall mean the
percentage of such Lender set forth opposite its signature line on the
signature pages hereof and designated as such, as such percentage may be
hereafter be adjusted pursuant to any Assignment and Acceptance or amendment
to this Agreement.
"REGISTER" shall have the meaning given such term in Section 9.04(d)
hereof.
"REGULATION G" shall mean Regulation G of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"RELEASE" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"REMEDIAL ACTION" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, xxxxx or in any other way address any
Hazardous Material in the Environment; (ii) prevent the Release or threat of
Release, or minimize the further Release of any Hazardous Material so it does
not migrate or endanger or threaten to endanger public health, welfare or the
Environment; or (iii) perform studies and investigations in connection with,
or as a precondition to, (i) or (ii) above.
"REQUIRED LENDERS" shall mean, at any time, (i) Lenders having Pro Rata
Percentages of the Commitment representing in the aggregate at least 51% of
the Commitment at such time, (ii) with respect to acceleration pursuant to
clause (ii) of Article VII, Lenders having Loans, Competitive Loans and L/C
Exposure in the aggregate of at least 51% of such Loans, Competitive Loans
and L/C Exposure or (iii) if the Commitment has terminated, Lenders having
Loans and L/C Exposure representing in the aggregate at least 51% of the sum
of all Loans outstanding and L/C Exposure; and, in each case, if there is
more than one Lender party hereto, at least two Lenders.
"RESPONSIBLE OFFICER" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement and the other
Loan Papers.
"RESTRICTED PAYMENT" shall have the meaning ascribed thereto in Section
6.06 hereof.
"RESTRICTED SUBSIDIARY" means each Subsidiary of the Borrower existing
on the Closing Date and each Subsidiary of the Borrower created or acquired
from time to time hereafter except Unrestricted Subsidiaries.
"REVOLVING LOAN MATURITY DATE" shall mean November 24, 2002 or any later
date that the Revolving Loan Maturity Date is extended to in accordance with
the terms of Section 2.10(f) hereof, or, in each case, any earlier date as
the Obligations are due and payable in full (whether by scheduled reduction,
acceleration, termination or otherwise). Notwithstanding any other provision
in this Agreement or in any other Loan Paper, the Revolving Loan Maturity
Date shall never be extended beyond November 24, 2004.
"REVOLVING LOANS" shall mean the Revolving Loans made available by the
Lenders to the Borrower pursuant to the Commitment and Section 2.01 hereof.
Each Revolving Loan shall be a Eurodollar Revolving Loan or an ABR Revolving
Loan.
"SUBSIDIARY" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, by the parent or one
or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"TOTAL EXPOSURE" shall mean, with respect to the Lenders at any time,
the aggregate principal amount at such time of the sum of (a) all outstanding
Revolving Loans, plus (b) the aggregate amount at such time of all Lenders'
L/C Exposure, plus (c) the amount by which the outstanding Competitive
Borrowings shall be deemed to have utilized the Commitment in accordance with
Section 2.16 hereof.
"TRANSACTIONS" shall have the meaning assigned to such term in Section
3.02 hereof.
"TYPE", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term
"Rate" shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"UNRESTRICTED SUBSIDIARIES" means (a) those foreign organized
Subsidiaries of the Borrower listed on SCHEDULE 1.01 hereto, (b) each other
foreign organized Subsidiary of the Borrower which the Borrower designates
from time to time as an "Unrestricted Subsidiary" and which the Borrower has
given prior written notice thereof to the Administrative Agent and the
Lenders, provided that, in no event may the Borrower designate any foreign
Subsidiary of the Borrower as an "Unrestricted Subsidiary" if the
consolidated revenue of such foreign Subsidiary together with the
consolidated revenue of each other Subsidiary of the Borrower which has been
designated as an Unrestricted Subsidiary represents more than 25% of
consolidated revenue of the Borrower and its Subsidiaries, and (c) each other
Subsidiary of the Borrower which the Borrower and each Lender agree from time
to time shall be designated as an "Unrestricted Subsidiary".
"WHOLLY OWNED SUBSIDIARY" of any Person shall mean a subsidiary of such
Person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the outstanding Capital Stock or
partnership interests, as the case may be, are, at the time any determination
is being made, owned by such Person or one or more Wholly Owned Subsidiaries
of such Person or by such Person and one or more Wholly Owned Subsidiaries of
such Person.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS, GENERALLY. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in
effect from time to time; provided, however, that for purposes of determining
compliance with the covenants contained in Article VI hereof, all accounting
terms herein shall be interpreted and all accounting determinations hereunder
shall be made in accordance with GAAP as in effect on the date of this
Agreement and applied on a basis consistent with the application used in the
financial statements referred to in Section 3.05 hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. REVOLVING LOANS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Revolving Loans to the Borrower,
at any time and from time to time on or after the date hereof and until the
earlier of (a) the Revolving Loan Maturity Date and (b) the termination of
the Commitment in accordance with the terms hereof, in an aggregate principal
amount at any time up to such Lender's Pro Rata Percentage of the Commitment,
provided that, the Borrower agrees that, notwithstanding anything in this
Agreement or in any other Loan Paper to the contrary, no Lender shall at any
time be obligated to make any Loan if such Loan would result in the Total
Exposure exceeding the Commitment. Within the limits set forth in the
preceding sentence and subject to the terms, conditions and limitations set
forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving
Loans. Competitive Loans under the Commitment shall only be available to the
Borrower and accepted by the Administrative Agent if, and only for so long
as, the Leverage Ratio is less than 2.50 to 1.00, as determined in accordance
with the most recently delivered Compliance Certificate.
SECTION 2.02. LOANS.
(a) Each Loan (other than Competitive Loans) shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Pro Rata Percentages; PROVIDED, HOWEVER, that the failure of
any Lender to make any Loan shall not in itself relieve any other Lender of
its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Each Competitive Loan shall
be made in accordance with the procedures set forth in Section 2.03 hereof,
and shall reduce the Commitment in accordance with the terms of Section 2.16
below. If the Commitment has been reduced to zero, Competitive Loans shall
not be available hereunder. Except for Loans deemed made pursuant to Section
2.02(f) hereof, the Loans or Competitive Loans comprising any Borrowing shall
be in an aggregate principal amount that is (i) (x) with respect to any
Competitive Borrowing, an integral multiple of $1,000,000 and not less than
$3,000,000 and (y) with respect to any other Borrowing, an integral multiple
of $1,000,000 and not less than $3,000,000 or (ii) equal to the remaining
available balance of the Commitment.
(b) Subject to Sections 2.09 and 2.14 hereof, each Competitive
Borrowing shall be comprised entirely of Eurodollar Competitive Loans or
Fixed Rate Loans, and each other Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request pursuant to Section
2.03 or 2.04 hereof, as applicable; PROVIDED, HOWEVER, that Borrowings on the
Closing Date shall be comprised entirely of ABR Loans. Each Lender may at
its option make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement. Borrowings of more than
one Type may be outstanding at the same time; PROVIDED, HOWEVER, that the
Borrower shall not be entitled to request any Borrowing that, if made, would
result in more than twelve Eurodollar Borrowings outstanding hereunder at any
time. For purposes of the foregoing, Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in Dallas, Texas as the Administrative Agent may designate not later
than 12:00 noon, Dallas, Texas time, and the Administrative Agent shall by
3:00 p.m., Dallas, Texas time, credit the amounts so received to an account
in the name of the Borrower, maintained with the Administrative Agent and
designated by the Borrower in the applicable Borrowing Request or Competitive
Bid Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the
amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(e) The Borrower acknowledges that if the Borrower requests any Borrowing
with an Interest Period that would end after the Revolving Loan Maturity Date, a
Breakage Event (as
defined in Section 2.15 hereof) will occur on the Revolving Loan Maturity
Date, as applicable, and the Borrower will be obligated to indemnify the
Lenders in accordance with the terms of Section 2.15 hereof.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.21(e) hereof within the time
specified in such Section, the Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative Agent
will promptly notify each Lender of such L/C Disbursement and its Pro Rata
Percentage thereof. Each Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., Dallas,
Texas time, on such date (or, if such Lender shall have received such notice
later than 12:00 (noon), Dallas, Texas time, on any day, not later than 10:00
a.m., Dallas, Texas time, on the immediately following Business Day), an
amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR
Loan of such Lender and such payment shall be deemed to have reduced the L/C
Exposure), and the Administrative Agent will promptly pay to the Issuing Bank
amounts so received by it from the Lenders. The Administrative Agent will
promptly pay to the Issuing Bank any amounts received by it from the Borrower
pursuant to Section 2.21(e) hereof prior to the time that any Lender makes
any payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Lenders that shall have made such payments and to
the Issuing Bank, as their interests may appear. If any Lender shall not
have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and
including the date such amount is required to be paid in accordance with this
paragraph to but excluding the date such amount is paid, to the
Administrative Agent at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to ABR Loans pursuant to Section 2.07
hereof, and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.
SECTION 2.03. COMPETITIVE BID PROCEDURE.
(a) Competitive Bids shall only be available to the Borrower and accepted
by the Administrative Agent if, and only for so long as, the Leverage Ratio is
less than 2.50 to 1.00, as determined in accordance with the most recently
delivered Compliance Certificate. In order to request Competitive Bids, the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Competitive Bid Request (i) in the case of a Eurodollar Competitive
Borrowing, not later than 10:00 a.m., Dallas, Texas time, four Business Days
before the proposed date of such Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., Dallas, Texas time, one Business Day
before the proposed date of such Borrowing. A Competitive Bid Request shall not
be made within five Business Days after the date of any previous Competitive Bid
Request. No ABR Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform substantially to
the format of EXHIBIT D-1 hereto may be rejected by the Administrative Agent and
the Administrative Agent shall notify
the Borrower of such rejection as promptly as practicable. Each Competitive
Bid Request shall refer to this Agreement and specify (i) whether the
Borrowing being requested is to be a Eurodollar Borrowing or a Fixed Rate
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day);
(iii) the number and the location of the account to which funds are to be
disbursed (which shall be an account that complies with the requirements of
Section 2.02(c) hereof); (iv) the aggregate principal amount of such
Borrowing, which shall be a minimum of $3,000,000 and an integral multiple of
$1,000,000; and (v) the Interest Period with respect thereto. Promptly after
its receipt of a Competitive Bid Request that is not rejected, the
Administrative Agent shall by telecopy in the form set forth in EXHIBIT D-2
invite the Lenders to bid to make Competitive Loans pursuant to the
Competitive Bid Request. Each Competitive Loan may only be made in an amount
equal to or less than the lesser of (i) the amount by which the Commitment
exceeds the Total Exposure on such date and (ii) the amount by which the
Commitment exceeds the sum of (A) the aggregate outstanding Revolving Loans,
(B) the L/C Exposure and (C) the aggregate outstanding Competitive Loans.
(b) Each Lender may make one or more Competitive Bids to the Borrower
responsive to a Competitive Bid Request. Each Competitive Bid by a Lender
must be received by the Administrative Agent by telecopy, (i) in the case of
a Eurodollar Competitive Borrowing, not later than 9:30 a.m., Dallas, Texas
time, three Business Days before the proposed date of such Competitive
Borrowing, and (ii) in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., Dallas, Texas time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the format
of EXHIBIT D-3 may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall refer to this Agreement and specify
(x) the principal amount (which shall be a minimum of $3,000,000 and an
integral multiple of $1,000,000 and which may equal the entire principal
amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Competitive Loans that the Lender is willing to make, (y)
the Competitive Bid Rate or Competitive Bid Rates at which the Lender is
prepared to make such Competitive Loan or Competitive Loans and (z) the
Interest Period applicable to such Competitive Loan or Competitive Loans and
the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid shall have been made
and the identity of the Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this paragraph
(d), accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject each Competitive Bid, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., Dallas, Texas time, three
Business Days before the date of the proposed Competitive Borrowing, and (y) in
the case of a Fixed Rate Borrowing, not later than 10:30 a.m., Dallas, Texas
time, on the proposed date of the Competitive Borrowing;
PROVIDED, HOWEVER, that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) the Borrower
shall not accept a Competitive Bid made at a particular Competitive Bid Rate
if the Borrower has decided to reject a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Borrower shall not exceed the principal amount specified in
the Competitive Bid Request, (iv) if the Borrower shall accept a Competitive
Bid or Bids made at a particular Competitive Bid Rate but the amount of such
Competitive Bid or Bids would cause the total amount to be accepted by the
Borrower to exceed the amount specified in the Competitive Bid Request, then
the Borrower shall accept a portion of such Competitive Bid or Bids in an
amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids so accepted, which acceptance, in the
case of multiple Competitive Bids at such Competitive Bid Rate, shall be made
pro rata in accordance with the amount of each such Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $3,000,000 and an integral multiple of $1,000,000; PROVIDED
FURTHER, HOWEVER, that if a Competitive Loan must be in an amount less than
$3,000,000 because of the provisions of clause (iv) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and
in calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Borrower. A notice given by the Borrower pursuant to this
paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
in what amount and at what Competitive Bid Rate), and each successful bidder
will thereupon become bound, upon the terms and subject to the conditions
hereof, to make the Competitive Loan in respect of which its Competitive Bid
has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly to
the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
SECTION 2.04. BORROWING PROCEDURE. In order to request a Borrowing
(other than a Competitive Borrowing or a deemed Borrowing pursuant to Section
2.02(f) hereof, as to which this Section 2.04 shall not apply), the Borrower
shall hand deliver or telecopy to the Administrative Agent a duly completed
Borrowing Request (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., Dallas, Texas time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 10:00
a.m., Dallas, Texas on the date (which shall be a Business Day) of a proposed
Borrowing. Each Borrowing Request shall be irrevocable, shall be signed by
or on behalf of the Borrower and shall specify the following information: (i)
whether the Borrowing then being requested is to be a Eurodollar Borrowing or
an ABR Borrowing (it being understood that the Borrowing on the Closing Date
shall be an ABR Borrowing); (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and location of the account to which funds
are to be disbursed (which shall be an account that complies with the
requirements of Section 2.02(c)) hereof; (iv) the amount of such Borrowing;
(v) if such Borrowing is to be a Eurodollar Borrowing, the Interest Period
with respect thereto; and (vi) if the Borrower has complied with each
condition set forth in Section 2.02(b) hereof; provided, however, that,
notwithstanding any contrary specification in any Borrowing Request, each
requested Competitive Borrowing shall comply with the requirements set forth
in Section 2.03 hereof. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.04 hereof (and the contents thereof), and of each Lender's portion
of the requested Borrowing.
SECTION 2.05. EVIDENCE OF DEBT; REPAYMENT OF LOANS.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Lenders (i) the then unpaid
principal amount of each Competitive Loan, on the last day of the Interest
Period applicable to such Competitive Loan or, if earlier, on the Revolving
Loan Maturity Date and (ii) the then unpaid principal amount of each
Revolving Loan on the Revolving Loan Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan or Competitive Loan made by such Lender from
time to time, including the amounts of principal and interest payable and
paid such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan or Competitive Loan made hereunder, the
Type of Borrowing or type of Competitive Borrowing thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts
of the obligations therein recorded; provided however, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to
repay the Loans or Competitive Loans in accordance with their terms.
(e) As evidence of the Loans and Competitive Loans hereunder, on the
Closing Date the Borrower shall deliver to each Lender (i) one promissory note
evidencing its Pro Rata Percentage of the Loans made hereunder and (b) one
promissory note in the original principal
amount of $200,000,000 evidencing any Competitive Loans made hereunder. Such
promissory notes will evidence each Lenders' Pro Rata Percentage of each
Revolving Loan, L/C Exposure and each Lenders' exposure under any Competitive
Loan, if any.
SECTION 2.06. FEES.
(a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, such Facility Fees as are set forth in any Fee Letters
(the "FACILITY FEES") in accordance with such terms set forth in the Fee
Letters.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in its Fee Letter at the times and
in the amounts specified therein (the "ADMINISTRATIVE AGENT FEES").
(c) The Borrower agrees to pay (i) to each Lender, through the
Administrative Agent, on the last day of March, June, September and December
of each year and on the date on which the Commitment shall be terminated as
applicable and as provided herein, a fee (an "L/C PARTICIPATION FEE")
calculated on such Lender's Pro Rata Percentage of the average daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Loan
Maturity Date, or the date on which all Letters of Credit have been canceled
or have expired and the Commitment shall have been terminated) at a rate
equal to the Applicable Percentage from time to time used to determine the
interest rate on Borrowings comprised of Eurodollar Loans pursuant to Section
2.07 hereof, and (ii) to the Issuing Bank with respect to each Letter of
Credit the standard fronting, issuance and drawing fees specified from time
to time by the Issuing Bank (the "ISSUING BANK FEES"). Subject to Section
9.09 hereof and Applicable Law, all L/C Participation Fees and Issuing Bank
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 365 or 366 days, as applicable.
(d) Subject to Section 9.09 hereof, commencing on December 31, 1997 and
continuing on the last day of March, June, September and December of each
year on and until the date on which the Commitment shall be terminated as
provided herein, the Borrower shall pay to the Administrative Agent for the
account of Lenders commitment fees (the "COMMITMENT FEES") on the average
daily amount of the difference between (A) the Commitment and (B) the Total
Exposure, at a per annum rate (the "Commitment Fee Rate") based on the
Leverage Ratio for the most recently completed full fiscal quarter as set
forth below:
Leverage Ratio Per Annum Commitment Fee Rate
-------------- ------------------------------
CATEGORY 1
----------
Greater than or
equal to 2.00 to 1.00 0.2500%
CATEGORY 2
----------
Less than 2.00 to 1.00 0.1875%
Notwithstanding anything in this Agreement to the contrary, in each
determination of the Commitment in connection with this Section 2.06(d), the
amount of all Competitive Loans added to Total Exposure in accordance with
the definition of the Total Exposure shall be deducted from the Total
Exposure. Except as set forth below, the Leverage Ratio utilized for purposes
of determining the Commitment Fee Rate shall be that in effect as of the last
day of the most recent fiscal quarter of the Borrower in respect of which
financial statements have been delivered pursuant to this Agreement. From
the date hereof until the earliest to occur of the initial delivery of
financial statements pursuant to Section 5.04(a) or (b) hereof, the
Borrower's failure to timely deliver such financial statements or the
occurrence of an Event of Default, the Leverage Ratio shall be deemed to be
within Category 1 above. The Commitment Fee Rate from time to time in effect
shall be based on the Leverage Ratio from time to time in effect, and each
change in the Commitment Fee Rate resulting from a change in (or the initial
establishment of) the Leverage Ratio shall be effective with respect to the
Commitment Fee Rate outstanding on and after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.04(a) or (b) hereof indicating such change to and including the
date immediately preceding the next date of delivery of such financial
statements and certificates indicating another such change. Notwithstanding
the foregoing, (a) at any time during which the Borrower has failed to
deliver the financial statements and certificates required by Section 5.04(a)
or (b) hereof, or (b) at any time after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall be deemed to be
in Category 1 above for purposes of determining the Commitment Fee Rate.
Subject to Section 9.09 hereof and Applicable Law, all Commitment Fees shall
be computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as applicable.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly
to the Issuing Bank. Once paid, none of the Fees shall be refundable, except
in accordance with the provisions of Section 9.09 hereof.
SECTION 2.07. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.08 hereof, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, when the Alternate Base Rate is determined by reference to the Prime
Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate. If the amount of interest payable in
respect of any interest computation period is limited to the Highest Lawful
Rate in accordance with the definition of Alternate Base Rate, and the amount
of interest payable in respect of any subsequent interest computation period
would be less than the Maximum Amount, then the amount of interest payable in
respect of such subsequent interest computation period shall be automatically
increased to the Maximum Amount; PROVIDED that at no time shall the aggregate
amount by which interest paid has been increased pursuant to this sentence
exceed the aggregate amount by which interest has been reduced had the
Alternate Base Rate not been limited to the Highest Lawful Rate.
(b) Subject to the provisions of Section 2.08 hereof, the Loans and
Competitive Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of
360 days) at a rate per annum equal to (i) in the case of each Revolving
Loan, the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing in effect from time to time, and (ii) in the case of each
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Competitive Borrowing plus the Margin offered by the Lender making such
Competitive Loan and accepted by the Borrower pursuant to Section 2.03
hereof.
(c) Subject to the provisions of Section 2.08 hereof, each Fixed Rate
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the fixed rate
of interest offered by the Lender making such Fixed Rate Loan and accepted by
the Borrower pursuant to Section 2.03 hereof.
(d) Interest on each Loan or Competitive Loan shall be payable on the
Interest Payment Dates applicable to such Loan or Competitive Loan except as
otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period,
as the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.08. DEFAULT INTEREST. Notwithstanding any other provision of
this Agreement and the other Loan Papers except Section 9.09 hereof to the
contrary, if there shall exist any Event of Default hereunder, at the
election of the Required Lenders by written notice to the Borrower, the
Borrower shall pay interest on the Obligations to but excluding the date of
actual payment (after as well as before judgment) at a rate per annum equal
to the lesser of (a) the Highest Lawful Rate and (b) a rate per annum
(computed on the basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) equal to the sum
of the Alternate Base Rate plus 1.00%.
SECTION 2.09. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar
Borrowing the Administrative Agent shall have determined that dollar deposits
in the principal amounts of the Loans or Competitive Loans comprising such
Borrowing or Competitive Borrowing are not generally available in the London
interbank market, or that the rates at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Lenders of
making or maintaining Eurodollar Loans during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written
or telecopy notice of such determination to the Borrower and the Lenders. In
the event of any such determination, until the Administrative Agent shall
have advised the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.04 hereof shall be deemed to be a request for
an ABR Borrowing provided that, any request by the Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 hereof shall be of no force
and effect and shall be denied by the Administrative Agent. Each
determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENT; EXTENSION OF THE
REVOLVING LOAN MATURITY DATE.
(a) MATURITY DATES. The Commitment shall automatically terminate on
the Revolving Loan Maturity Date (as the same may be extended pursuant to
paragraph (f) of this Section 2.10). The L/C Commitment shall terminate upon
the termination of the Commitment.
(b) VOLUNTARY REDUCTION OF THE COMMITMENT. Upon at least three
Business Days' prior irrevocable written or telecopy notice to the
Administrative Agent (specifying the amount of reduction), the Borrower may
at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Commitment; PROVIDED, HOWEVER, that (i) each partial
reduction shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Commitment shall not be reduced to an
amount that is less than the Total Exposure.
(c) TOTAL EXPOSURE IN EXCESS OF COMMITMENT. If, as a result of any
reduction of the Commitment, the Total Exposure exceeds the Commitment, then
the Borrower shall, on the date of such reduction, (a) first repay Loans, (b)
second, cash collateralize outstanding Letters of Credit, and (c) third,
repay Competitive Loans, each in accordance with this Agreement in an
aggregate principal amount sufficient to eliminate such excess.
(d) COMMITMENT REDUCTION DUE TO ASSET DISPOSITIONS. The Commitment
shall be automatically and permanently reduced by any Loan prepaid pursuant
to Section 2.12(c) hereof on the date of such prepayment, in an amount equal
to the amount of such prepayment.
(e) COMMITMENT REDUCTION, GENERALLY. Each reduction in the Commitment
hereunder shall be made ratably among the Lenders in accordance with their
respective Pro Rata Percentages of the Commitment. The Borrower shall pay,
to the Administrative Agent for the account of the applicable Lenders, on the
date of each termination or reduction, the Commitment Fees on the
amount of the Commitment so terminated or reduced accrued to but excluding
the date of such termination or reduction.
(f) EXTENSION OF COMMITMENT AND REVOLVING LOAN MATURITY DATE. The
Borrower may, by giving written notice to the Administrative Agent (which
shall promptly deliver a copy to each of the Lenders) not earlier than 90
days prior to the then current Revolving Loan Maturity Date (the "EXISTING
MATURITY DATE") and not fewer than 45 days prior to the Existing Maturity
Date, extend the Revolving Loan Maturity Date to the date that occurs 364
days after the Existing Maturity Date (or if such 364th day is not a Business
Day, the immediately preceding Business Day); PROVIDED, HOWEVER, that the
Borrower may effect only two extensions pursuant to this Section 2.10(f)
hereof. Notwithstanding the foregoing, the extension of the Existing
Maturity Date shall not be effective with respect to any Lender unless (i)
the Borrower has received the prior written consent of such Lender, (ii) the
Borrower has received the prior written consent of Lenders representing not
less than 66 and 2/3rds percent of the Pro Rata Percentages of the
Commitment, (iii) no Default or Event of Default shall have occurred and be
continuing on both the date of the notice requesting such extension and on
the Existing Maturity Date, (iv) each of the representations and warranties
set forth in Article III hereof (including, without limitation, those set
forth in Section 3.06 hereof and Section 3.09 hereof) shall be true and
correct in all material respects on and as of each of the date of the notice
requesting such extension and the Existing Maturity Date with the same force
and effect as if made on and as of each such date, except to the extent such
representations and warranties expressly relate to an earlier date, and (v)
in no event shall the Revolving Loan Maturity Date be extended past November
24, 2004.
Any Lender not consenting to any extension of the Revolving Loan
Maturity Date that satisfies each of the conditions precedent except (i) set
forth in the preceding sentence ("Non-Extending Lender"), will continue to be
a Lender hereunder and under the other Loan Papers until the expiration of
the Existing Maturity Date. The Borrower may seek additional commitments
from existing Lenders or seek new lenders in accordance with the terms of
Section 9.04 hereof to replace any such Non-Extending Lender Pro Rata
Percentage of the Commitment (the "Expiring Commitment Percentage"). To the
extent that none of the existing Lenders agree to increase their existing Pro
Rata Percentages of the Commitment by the Expiring Commitment Percentage and
no new lender becomes a party hereto and a Lender hereunder in the amount of
the Expiring Commitment Percentage (or any combination of the above), the
Commitment shall immediately, automatically and irrevocably be reduced on the
Existing Maturity Date by the amount of the Expiring Commitment Percentage or
any portion thereof not assumed by any Lender.
SECTION 2.11. CONVERSION AND CONTINUATION OF BORROWINGS.
(a) Provided that such conversion or continuation is not otherwise
prohibited by this Agreement, the Borrower shall have the right at any time upon
prior irrevocable notice to the Administrative Agent (x) not later than 12:00
(noon), Dallas, Texas time, one Business Day prior to conversion, to convert any
Eurodollar Borrowing into an ABR Borrowing, (y) not later than 10:00 a.m.,
Dallas, Texas time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurodollar Borrowing or at the end of the
current Interest Period, to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (z) not later than 10:00
a.m., Dallas, Texas time, three Business Days prior to conversion, at the end
of the current Interest Period, to convert the Interest Period with respect
to any Eurodollar Borrowing to another permissible Interest Period, subject
in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
hereof regarding the principal amount and maximum number of Borrowings of
the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.15
hereof;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing; and
(vii) after the occurrence and during the continuance of a Default
or an Event of Default, no outstanding Loan may be converted into, or
continued for an additional interest period as, a Eurodollar Loan.
(b) Each notice pursuant to this Section 2.11 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted
to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.11 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.11 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.11 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing. The
Borrower shall not have the right to continue or convert the Interest Period
with respect to any Competitive Borrowing pursuant to this Section 2.11.
SECTION 2.12. PREPAYMENT.
(a) VOLUNTARY PREPAYMENT. The Borrower shall have the right at any time
and from time to time to prepay any Borrowing other than a Competitive
Borrowing, in whole or in part, upon at least two Business Days' prior written
or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent before 11:00 a.m., Dallas, Texas
time; provided, however, that each partial prepayment shall be in an amount that
is an integral multiple of $1,000,000 and not less than $3,000,000.
(b) MANDATORY PREPAYMENT AND CASH COLLATERALIZATION. In the event of
any termination of the Commitment, the Borrower shall repay or prepay all its
outstanding Loans (and irrevocably cash collateralize the L/C Exposure in the
manner contemplated by Section 2.21(j) hereof) on the date of such
termination. In the event of any partial reduction of the Commitment, then
(i) at or prior to the effective date of such reduction or termination, the
Administrative Agent shall notify the Borrower and the Lenders of the
aggregate amount of outstanding Revolving Loans or Total Exposure, as the
case may be, after giving effect thereto and (ii) if the sum of the aggregate
amount of outstanding Revolving Loans or Total Exposure, as the case may be,
and the aggregate outstanding principal amount of the Competitive Loans, at
the time would exceed the Commitment, after giving effect to such reduction
or termination, then the Borrower shall, on the date of such reduction or
termination, repay or prepay Borrowings in an amount sufficient to eliminate
such excess.
(c) ASSET DISPOSITIONS. Whenever and on each occasion that the Borrower
or any Restricted Subsidiary of the Borrower receives Net Cash Proceeds from an
Asset Disposition (this provision shall not in and of itself permit the Borrower
to consummate any Asset Disposition) (not including any transaction in which the
Borrower transfers control through a sale, corporate transaction or other
disposition, of the hotel contracts and related assets for its hotel customers
outside of the United States) which, when taken together with all such Net Cash
Proceeds theretofore received, exceeds 15% of the Consolidated Tangible Assets
of the Borrower and its Restricted Subsidiaries on any such date of receipt (any
such Net Cash Proceeds in excess of such
amount being referred to as "Excess Proceeds"), the Borrower will,
substantially simultaneously with (and in any event not later than the
Business Day next following) the receipt of such Excess Proceeds, pay to the
Administrative Agent (for application to the prepayment of the Revolving
Loan) an amount equal to such Excess Proceeds. The Revolving Loans so
prepaid will result in an automatic and permanent reduction of the Commitment
in an amount equal to the amount of such prepayment.
(d) ESCROW AMOUNTS FOR REPAYMENT OF FIXED RATE BORROWINGS AND EURODOLLAR
BORROWINGS. In the event the amount of any prepayment required to be made above
shall exceed the aggregate principal amount of the applicable outstanding ABR
Loans (the amount of any such excess being called the "ESCROW AMOUNT"), the
Borrower shall have the right, in lieu of making such prepayment in full, to
prepay all the outstanding applicable ABR Loans and to deposit an amount equal
to the Escrow Amount with the Administrative Agent in a cash collateral account
maintained by and in the sole dominion and control of the Administrative Agent.
Any amounts so deposited shall be held by the Administrative Agent as collateral
for the Obligations and applied to the prepayment of outstanding Eurodollar
Loans at the end of the current Interest Periods applicable thereto. On any
Business Day on which (x) collected amounts remain on deposit in or to the
credit of such cash collateral account after giving effect to the payments made
on such day and (y) the Borrower shall have delivered to the Administrative
Agent a written request or telephonic request (which shall be promptly confirmed
in writing) that such remaining collected amounts be invested in the Permitted
Investments specified in such request, the Administrative Agent shall use its
reasonable efforts to invest such remaining collected amounts in such Permitted
Investments; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period for which it is to be applied. The
Borrower shall not have the right to withdraw any amount from such cash
collateral account until such Eurodollar Loans and accrued interest thereon are
paid in full or if a Default or Event of Default then exists or would result.
(e) NOTICE OF VOLUNTARY PREPAYMENT. Each notice of prepayment shall
specify the prepayment date and the principal amount of each Borrowing (or
portion thereof) to be prepaid. Each such notice shall be irrevocable and shall
commit the Borrower to prepay such Borrowing by the amount stated therein on the
date stated therein. All prepayments under this Section 2.12 shall be subject
to Section 2.15 hereof but otherwise without premium or penalty. All
prepayments under this Section 2.12 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of payment.
(f) PREPAYMENT AS A RESULT OF THE TOTAL EXPOSURE IN EXCESS OF THE
COMMITMENt. Whenever and on each occasion that the Total Exposure exceeds the
Commitment, the Borrower will immediately prepay the Revolving Loans by the
amount necessary to reduce the Total Exposure to an amount less than or equal to
the Commitment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision of this Agreement, if after the
date of this Agreement any change in any Law or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
Law) shall change the basis of taxation of payments to any Lender or the
Issuing Bank of the principal of or interest on any Eurodollar Loan or Fixed
Rate Loan made by such Lender or any Fees or other amounts payable hereunder
(other than changes in respect of taxes imposed on the overall net income
(including without limitation franchise taxes on net income, branch profit
taxes and alternate minimum income taxes) of such Lender or the Issuing Bank
by the jurisdiction in which such Lender or the Issuing Bank is incorporated
or has its principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or
for the account of or credit extended by any Lender or the Issuing Bank
(except any such reserve requirement which is reflected in the Adjusted LIBO
Rate) or shall impose on such Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made by such Lender or any Letter of Credit or
participation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or Fixed Rate Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder whether of principal,
interest or otherwise, by an amount deemed by such Lender or the Issuing Bank
to be material, then the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, upon demand such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any Law, agreement or guideline regarding
capital adequacy, or any change after the date hereof in any such Law,
agreement or guideline (regardless of whether the change in such Law,
agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of Law) of any Governmental
Authority has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital or on the capital of such Lender's or
the Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans or Competitive Loans made or participations in Letters
of Credit purchased by such Lender pursuant hereto or the Letters of Credit
issued by the Issuing Bank pursuant hereto to a level below that which such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company could have achieved but for such applicability, adoption, change or
compliance (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital
adequacy) by an amount deemed by such Lender or the Issuing Bank to be
material, then from time to time the Borrower shall pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the basis for computation of the amount or amounts necessary
to compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received
or receivable or reduction in return on capital shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided, however, that in no event shall the Borrower be obligated to make
any payment under this Section 2.13 in respect of increased costs incurred
prior to the period commencing 90 days prior to the date on which demand for
compensation in respect of such increased costs is first made. In addition,
the Borrower shall not incur liability for additional amounts with respect to
changes in the basis of taxation described above for periods of time before
such Lender or Issuing Bank becomes aware of the change in such basis except
in the case of any retroactive application of such a change. The protection
of this Section shall be available to each Lender and the Issuing Bank
regardless of any possible contention of the invalidity or inapplicability or
the Law, agreement, guideline or other change or condition that shall have
occurred or been imposed. Notwithstanding any other provision of this
Section, no Lender shall be entitled to demand compensation hereunder in
respect of any Competitive Loan if it shall have been aware of the event or
circumstance giving rise to such demand at the time it submitted the
Competitive Bid pursuant to which such Competitive Loan was made.
SECTION 2.14. CHANGE IN LEGALITY.
(a) Notwithstanding any other provision of this Agreement, if, after the
date hereof, any change in any Law or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods and ABR Loans will not
thereafter (for such duration) be converted into Eurodollar Loans),
whereupon such Lender shall not submit a Competitive Bid in response to a
request for a Eurodollar Competitive Loan and any request for a
Eurodollar Borrowing (or to convert an ABR Borrowing to a Eurodollar
Borrowing or to continue a Eurodollar Borrowing for an additional Interest
Period) shall, as to such Lender only, be deemed a request for an ABR Loan
(or a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurodollar Loan into an ABR Loan, as the case may
be), unless such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above,
all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the
date of receipt by the Borrower.
SECTION 2.15. INDEMNITY. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Fixed Rate Loan
or Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any Fixed
Rate Loan or Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made pursuant to a conversion or continuation under Section 2.11
hereof) not being made after notice of such Loan or Competitive Loan shall have
been given by the Borrower hereunder for any reason other than default by a
Lender (any of the events referred to in this clause (a) being called a
"BREAKAGE EVENT") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Fixed Rate Loan or Eurodollar
Loan that is the subject of such Breakage Event for the period from the date of
such Breakage Event to the last day of the Interest Period in effect (or that
would have been in effect) for such Loan or Competitive Loan over (ii) the
amount of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period. A
certificate of any such Lender shall be delivered to the Borrower and shall be
conclusive absent manifest error, so long as such certificate sets forth in
reasonable detail any amount or amounts
which such Lender is entitled to receive pursuant to this Section 2.15 and
the basis of computation of the amount or amounts necessary to compensate
such Lender.
SECTION 2.16. PRO RATA TREATMENT. Except as provided below in this
Section 2.16 with respect to Competitive Borrowings and as required under
Section 2.14 hereof, each Borrowing, each payment or prepayment of principal
of any Borrowing, each payment of interest on the Loans, each payment of the
Facility Fees and Commitment Fees, each reduction of the Commitment and each
conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective Pro Rata Percentages of the Commitment (or,
if the Commitment shall have expired or been terminated, in accordance with
the respective principal amounts of their outstanding Loans). Each payment
of principal of any Competitive Borrowing shall be allocated pro rata among
the Lenders participating in such Competitive Borrowing, in accordance with
the respective principal amounts of their outstanding Competitive Loans
comprising such Competitive Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Competitive Borrowing in accordance with the respective
amounts of accrued and unpaid interest on their outstanding Competitive Loans
comprising such Competitive Borrowing. For purposes of determining the
available Commitment of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitment (including those
Lenders which shall not have made Loans as part of such Competitive
Borrowing) in accordance with each Lender's Pro Rata Percentage of the
Commitment. Each Lender agrees that in computing such Lender's portion of
any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any Debtor Relief Law or
other similar Law or otherwise, or by any other means, obtain payment (voluntary
or involuntary) in respect of any Loan or Loans or L/C Disbursement as a result
of which the unpaid principal portion of its Loans and participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion of
the Loans and participations in L/C Disbursements of any other Lender, it shall
be deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans and L/C Exposure of such other Lender, so that the
aggregate unpaid principal amount of the Loans and L/C Exposure and
participations in Loans and L/C Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and L/C
Exposure then outstanding as the principal amount of its Loans and L/C Exposure
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Loans and L/C Exposure outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the
purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan or L/C Disbursement deemed to have
been so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly
to the Borrower in the amount of such participation.
SECTION 2.18. PAYMENTS.
(a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any L/C Disbursement or any Fees or other amounts)
hereunder not later than 12:00 (noon), Dallas, Texas time, on the date when due
in immediately available dollars, without setoff, defense or counterclaim. Each
such payment (other than Issuing Bank Fees, which shall be paid directly to the
Issuing Bank,) shall be made to the Administrative Agent at its offices at 000
Xxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000.
(b) Whenever any payment (including principal of or interest on any
Borrowing or Competitive Borrowing or any Fees or other amounts) hereunder shall
become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest or Fees, if
applicable.
SECTION 2.19. TAXES.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.18 hereof, free and clear of and without deduction for
any and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto EXCLUDING (i) income
taxes imposed on the net income (including without limitation, branch profit
taxes and alternative minimum income taxes of the Administrative Agent, any
Lender or the Issuing Bank (or any transferee or assignee thereof, including a
participation holder (any such entity a "Transferee")), (ii) franchise taxes
imposed on the net income of the Administrative Agent, any Lender or the Issuing
Bank (or "TRANSFEREE"), in each case by the jurisdiction under the Laws of which
the Administrative Agent, such Lender or the Issuing Bank (or Transferee) is
organized or any political subdivision thereof or by the jurisdiction in which
the applicable lending or issuing office of the Administrative Agent, such
Lender, or the Issuing Bank (or Transferee) is located or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charge, withholdings and liabilities, collectively or individually, being called
"TAXES"). If the Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to the Administrative Agent, any Lender or
the Issuing Bank (or any Transferee), (i) the sum payable shall be increased by
the amount (an "ADDITIONAL AMOUNT") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.19) the Administrative Agent, such Lender or the Issuing Bank or
Transferee), as the case may be, shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with Applicable Law.
(b) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with Applicable Law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from and payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("OTHER TAXES").
(c) The Borrower will indemnify the Administrative Agent, each Lender
and the Issuing Bank (or Transferee) for the full amount of Taxes and Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank (or
Transferee), as the case may be, and any liability, (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
prepared by the Administrative Agent, a Lender or the Issuing Bank (or
Transferee), or the Administrative Agent on its behalf, absent manifest
error, shall be final, conclusive and binding for all purposes. Such
indemnification shall be made within 30 days after the date the
Administrative Agent, any Lender or the Issuing Bank (or Transferee), as the
case may be, makes written demand therefor.
(d) If the Administrative Agent, a Lender or the Issuing Bank (or
Transferee) receives a refund in respect of any Taxes or Other Taxes as to which
it has been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section 2.19, it shall within 30
days from the date of such receipt pay over to the Borrower (a) such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.19 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee) and (b)
interest paid by the relevant Governmental Authority with respect to such
refund; PROVIDED, HOWEVER, that the Borrower, upon the request of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee), shall
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to the Administrative Agent, such Lender or the Issuing Bank (or
Transferee) in the event the Administrative Agent, such Lender or the Issuing
Bank (or Transferee) is required to repay such refunds to such Governmental
Authority. If the Borrower determines in good faith that a reasonable basis
exists for contesting any Tax or Other Tax, the Administrative Agent, Lender,
Issuing Bank or Transferee, as applicable, shall cooperate with the Borrower in
challenging such Tax or Other Tax at the Borrower's expense if requested by the
Borrower (it being understood and agreed that the Administrative Agent, Lender,
Issuing Bank or Transferee, as applicable, shall have no obligation to contest
or responsibility for contesting such Tax or Other Tax).
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower to the relevant Governmental Authority, the Borrower will
deliver to the Administrative Agent, at its address referred to in Section 9.01
hereof, the original or a certified copy of any receipt actually issued by such
Governmental Authority evidencing payment thereof.
(f) Each Lender (or Transferee) that is organized under the Laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "NON-U.S. LENDER") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate containing representations regarding the status of such
Non-U.S. Lender as not being a bank for purposes of Section 881(c) of the Code,
as not being a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and as not being a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding
tax on payments by the Borrower under this Agreement. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office (a "NEW LENDING
OFFICE"). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U S. Lender. Notwithstanding any other
provision of this Section 2.19(f), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 2.19(f) that such Non-U.S. Lender
is not legally able to deliver.
(g) The Borrower shall not be required to indemnify any Non-U.S. Lender
or to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender
became a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office,
the date such Non-U.S. Lender designated such New Lending Office with respect
to a Loan or Competitive Loan; provided, however, that this paragraph (g)
shall not apply (x) to any Transferee or New Lending Office that becomes a
Transferee or New Lending Office as a result of an assignment, participation,
transfer or designation made at the request of the Borrower and (y) to the
extent the indemnity payment or additional amounts any Transferee, or any
Lender (or Transferee), acting through a New Lending Office, would be
entitled to receive (without regard to this paragraph (g)) do not exceed the
indemnity payment or additional amounts that the Person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have
been entitled to receive in the absence of such assignment, participation,
transfer or designation or (ii) the obligation to pay such additional amounts
would not have arisen but for a failure by such Non-U.S. Lender to comply
with the provisions of paragraph (g) above.
(h) Nothing contained in this Section 2.19 shall require any Lender or
the Issuing Bank (or any Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information that it deems to
be confidential or proprietary).
(i) Each Bank represents that, to the best of its knowledge, it is not
a party to any "conduit financing arrangement" as defined under applicable
Treasury Regulations promulgated under the Code.
(j) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof ("U.S.
TAXES") in respect of payment of any obligations due to such Non-U.S. Lender
under this Agreement ("LENDER OBLIGATIONS") if the Lender Obligations were in
registered form for U.S. Federal income tax purposes may request the Borrower
(through the Administrative Agent), and the Borrower agrees thereupon, to
exchange any promissory note(s) evidencing such Lender Obligations for
promissory note(s) registered as provided in subsection (k) below (each, a
"REGISTERED NOTE"). Registered Notes may not be exchanged for promissory
notes that are not Registered Notes.
(k) From and after the time, if any, when any Lender requests a
Registered Note, the Borrower shall maintain, or cause to be maintained, a
register (the "REGISTER") on which it enters the name of each registered
owner of the Lender Obligation(s) evidenced by a Registered Note. A
Registered Note and the Lender Obligation(s) evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Registered Note and the Lender
Obligation(s) evidenced thereby on the Register (and each Registered Note
shall expressly so provide). Any assignment or transfer of all or part of
such Lender Obligation(s) and the Registered Note(s) evidencing the same
shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Registered Note(s) evidencing such Lender
Obligation(s), duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the Registered Noteholder thereof,
and thereupon one or more new Registered Note(s) in the same aggregate
principal amount shall be issued to the designated assignee(s) or
transferee(s) pursuant to, in accordance with, and subject to the
restrictions of, Section 9.04 hereof). Prior to the due presentment for
registration of assignment or transfer of any Registered Note, the Borrower
and the Administrative Agent shall treat the Person in whose name such Lender
Obligation(s) and the Registered Note(s) evidencing the same is registered as
the owner thereof for the purpose of receiving all payments thereon and for
all other purposes, notwithstanding any notice to the contrary. The Register
shall be available for inspection by the Administrative Agent and any Lender
at any reasonable time upon reasonable prior notice.
SECTION 2.20. ASSIGNMENT OF COMMITMENT UNDER CERTAIN CIRCUMSTANCES; DUTY
TO MITIGATE.
(a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.13 hereof, (ii) any
Lender or the Issuing Bank delivers a notice described in Section 2.14 hereof
or (iii) the Borrower is required to pay any additional amount to any Lender
or the Issuing Bank or any Governmental Authority on account of any Lender or
the Issuing Bank pursuant to Section 2.19 hereof, the Borrower may, at its
sole expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b) hereof), upon notice to such
Lender or the Issuing Bank and the Administrative Agent, require such Lender
or the Issuing Bank to transfer and assign, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04 hereof), all
of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations which assignee may be another
Lender, if a Lender accepts such assignment); provided that (x) such
assignment shall not conflict with any Law, rule or regulation or order of
any court or other Governmental Authority having jurisdiction, (v) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a portion of the Commitment is being assigned, of the Issuing
Bank), which consent shall not unreasonably be withheld, and (z) the Borrower
or such assignee shall have paid to the affected Lender or the Issuing Bank
in immediately available funds an amount equal to the sum of the principal of
and interest accrued to the date of such payment on the outstanding Loans,
Competitive Loans and participations in L/C Disbursements of such Lender or
the Issuing Bank plus all Fees and other amounts accrued for the account of
such
Lender or the Issuing Bank hereunder (including any amounts under Section
2.13 hereof and Section 2.15 hereof); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or the Issuing Bank's claim for compensation under Section 2.13
hereof or notice under Section 2.14 hereof or the amounts paid pursuant to
Section 2.19 hereof, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.14, or cease to result in amounts being
payable under Section 2.19 hereof, as the case may be, including as a result
of any action taken by such Lender or the Issuing Bank pursuant to paragraph
(b) below), or if such Lender or the Issuing Bank shall waive its right to
claim further compensation under Section 2.13 hereof in respect of such
circumstances or event or shall withdraw its notice under Section 2.14 hereof
or shall waive its right to further payments under Section 2.19 hereof in
respect of such circumstances or event, as the case may be, then such Lender
or the Issuing Bank shall not thereafter be required to make any such
transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.13 hereof, (ii) any Lender or the Issuing Bank delivers a
notice described in Section 2.14 hereof or (iii) the Borrower is required to
pay any additional amount to any Lender or the Issuing Bank or any
Governmental Authority on account of any Lender or the Issuing Bank, pursuant
to Section 2.19, then such Lender or the Issuing Bank shall use reasonable
efforts (which shall not require such Lender or the Issuing Bank to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any
action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates,
if such filing or assignment would reduce its claims for compensation under
Section 2.13 hereof or enable it to withdraw its notice pursuant to Section
2.14 hereof or would reduce accounts payable pursuant to Section 2.19 hereof,
as the case may be, in the future. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender or the Issuing Bank in
connection with any such filing or assignment, delegation and transfer.
SECTION 2.21. LETTERS OF CREDIT.
(a) GENERAL. The Borrower may request the issuance of a Letter of
Credit, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, appropriately completed, for the account of the Borrower, at
any time and from time to time while the Commitment remains in effect. The
face amount of each Letter of Credit may never be greater than the lesser of
(i) $10,000,000 and (ii) the amount by which the Commitment exceeds the Total
Exposure on the date of issuance. This Section shall not be construed to
impose an obligation upon the Issuing Bank to issue any Letter of Credit that
is inconsistent with the terms and conditions of this Agreement.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. In order to request the issuance of a Letter of Credit (or to
amend, renew or extend an existing Letter of Credit), the Borrower shall hand
deliver or telecopy to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a completed Application and a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension,
the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) below), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare such Letter of Credit. In connection with a request for
the issuance of a Letter of Credit, in the event of any inconsistency between
the terms of any Application and the provisions of this Agreement, the
provisions of this Agreement shall be controlling. A Letter of Credit shall
be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall
be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (A) the L/C Exposure shall not
exceed $10,000,000 and (B) the Total Exposure (after giving effect to the
issuance of such Letter of Credit) shall not exceed the Commitment. The
Issuing Bank shall not enter into any amendment of an outstanding Letter of
Credit which has not been requested or approved in writing by the Borrower.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at the close
of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days
prior to the Revolving Loan Maturity Date, as applicable, unless such Letter
of Credit (i) expires by its terms on an earlier date or (ii) has a one-year
tenor and provides for the renewal thereof for additional one-year periods,
so long as such periods referred to in this clause (ii) shall not in any
event expire at a date later than the date that is five Business Days prior
to the Revolving Loan Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to bc drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of
the foregoing, each Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Pro Rata Percentage of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrower forthwith on the date due as provided
in Section 2.02(f) hereof. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than
two hours after the Borrower shall have received notice from the Issuing Bank
that payment of such draft will be made, or, if the Borrower shall have
received such notice later than 10:00 a.m., Dallas, Texas time, on any
Business Day, not later than 10:00 a.m., Dallas, Texas time, on the
immediately following Business Day.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any other Loan Paper, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Restricted Subsidiary of the Borrower or other
Affiliate thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other Person, whether in
connection with this Agreement or any other related or unrelated agreement
or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
The foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by Applicable Law) suffered by the Borrower
that are caused by the Issuing Bank's gross negligence or wilful misconduct
in determining whether drafts and other documents presented under a Letter of
Credit
comply with the terms thereof; it is understood that the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) the Issuing Bank's exclusive reliance on the documents presented
to it under such Letter of Credit as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be insufficient in any respect,
if such document on its face appears to be in order, and whether or not any
other statement or any other document presented pursuant to such Letter of
Credit proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in
any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute
wilful misconduct or gross negligence of the Issuing Bank
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent
a demand for payment under a Letter of Credit. The Issuing Bank shall as
promptly as possible give telephonic notification, confirmed by telecopy, to
the Administrative Agent and the Borrower of such demand for payment and
whether the Issuing Bank has made or will make an L/C Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Lenders with respect to any such L/C Disbursement. The
Administrative Agent shall promptly give each Lender notice thereof.
(h) INTERIM INTEREST. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower
shall reimburse such L/C Disbursement in full on such date, the unpaid amount
thereof shall bear interest for the account of the Issuing Bank, for each day
from and including the date of such L/C Disbursement, to but excluding the
earlier of the date of payment by the Borrower or the date on which interest
shall commence to accrue thereon as provided in Section 2.08 hereof, at the
rate per annum that would apply to such amount if such amount were an ABR
Loan.
(i) RESIGNATION OR REMOVAL OF THE ISSUING BANK. The Issuing Bank may
resign at any time by giving 90 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent
and the Lenders. Subject to the next succeeding paragraph, upon the
acceptance of any appointment as the Issuing Bank hereunder by a Lender that
shall agree to serve as successor Issuing Bank, such successor shall succeed
to and become vested with all the interests, rights and obligations of the
retiring Issuing Bank and the retiring Issuing Bank shall be discharged from
its obligations to issue additional Letters of Credit hereunder. At the time
such removal or resignation shall become effective, the Borrower shall pay
all accrued and unpaid fees pursuant to Section 2.06(c) hereof. The
acceptance of any appointment as the Issuing Bank hereunder by a successor
Lender shall be evidenced by an agreement entered into by such successor, in
a form satisfactory to the Borrower and the Administrative Agent, and, from
and
after the effective date of such agreement, (i) such successor Lender shall
have all the rights and obligations of the previous Issuing Bank under this
Agreement and (ii) references herein to the term Issuing Bank, shall be
deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of the Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such resignation or removal, but
shall not be required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders holding participations in outstanding
Letters of Credit representing greater than 50% of the aggregate undrawn
amount of all outstanding Letters of Credit thereof and of the amount to be
deposited), or if the maturity of the Loans has been accelerated
automatically pursuant to Article VII, as a result of the happening on an
event described in paragraph (g) or (h) thereof, forthwith, without notice of
any kind, deposit in an account with the Administrative Agent, for the
benefit of the Lenders, an amount in cash equal to the L/C Exposure as of
such date. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account
and, if so requested by the Borrower, shall invest the deposits therein in
Permitted Investments. Other than any interest earned on the investment of
such deposits in Permitted Investments, which investments shall be made at
the option and sole discretion of the Administrative Agent, such deposits
shall not bear interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically
be applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit), be applied to satisfy
other obligations of the Borrower under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each of the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. The Borrower and each of its
Restricted Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the Laws of the jurisdiction of its organization,
(b) has all requisite power and authority to own its property and assets and
to carry on its business as now conducted and as proposed to be conducted,
(c) is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required, except where the failure
so to qualify could not reasonably be expected to result in a Material
Adverse Effect, and (d) has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement, the other Loan
Papers and each other agreement or instrument contemplated thereby to which
it is or will be a party and to borrow hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance
by the Borrower of this Agreement, the promissory notes, the execution of the
guaranties by the Guarantors, the execution of all other Loan Papers by the
Obligors and the borrowings hereunder (collectively, the "Transactions") (a)
have been duly authorized by all requisite corporate and, if required,
stockholder action and (b) will not (i) violate (A) any provision of Law,
statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or
any Restricted Subsidiary of the Borrower, (B) any order of any Governmental
Authority or (C) any provision of any indenture, material agreement or other
material instrument to which the Borrower or any Restricted Subsidiary of the
Borrower is a party or by which any of them or any of their property is or
may be bound, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under, or give rise
to any right to accelerate or to require the prepayment, repurchase or
redemption of any obligation under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the
Borrower or any Restricted Subsidiary of the Borrower.
SECTION 3.03. ENFORCEABILITY. This Agreement has been duly executed
and delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance
with its terms. All other Loan Papers have been duly executed and delivered
by the Borrower and the Obligors and each constitutes a legal, valid and
binding obligation of the Borrower and the Obligors, as appropriate,
enforceable against the Borrower and the Obligors, as appropriate, in
accordance with its terms.
SECTION 3.04. GOVERNMENTAL APPROVALS. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be
required in connection with the Transactions, except for such as have been
made or obtained and are in full force and effect.
SECTION 3.05. FINANCIAL STATEMENTS. The Borrower has heretofore
furnished to the Lenders its balance sheets and statements of income and
equity and cash flow (a) as of and for the fiscal year ended December 31,
1996, audited by and accompanied by the opinion of Deloitte & Touche, LLP,
independent public accountants, and (b) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 1997. Such financial
statements present fairly the financial condition and results of operations
and cash flows of the Borrower as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities,
direct or contingent, of such entities as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis. The operating performance projections submitted prior to
the Closing Date by the Borrower to the Administrative Agent for the years
1997 through 2002 were prepared in good faith, and management believes them
to be based on reasonable assumptions and to fairly present the projected
financial condition and results of operations of the Borrower and its
Restricted Subsidiaries based upon management's good faith estimates about
the business, the relevant industries and the general economy as of the date
of such projections. The parties hereto understand that such projections
were not prepared as part of the Borrower's customary planning process, have
not been subject to the same level of scrutiny and review as the Borrower
undertakes in its annual business planning and budgeting process, and have
not been reviewed and approved by the Borrower's Board of Directors.
SECTION 3.06. NO MATERIAL ADVERSE CHANGE. There has been no material
adverse change in the business, assets, operations, financial condition, or
material agreements of the Borrower and its Restricted Subsidiaries, taken as
a whole, since June 30, 1997.
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES.
(a) Each of the Borrower and its Restricted Subsidiaries has good and
marketable title to, or valid leasehold interests in, all its material
properties and assets, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or
to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02 hereof.
(b) Each of the Borrower and its Restricted Subsidiaries has complied
with all material obligations under all material leases to which it is a
party and all such leases are in full force and effect. Each of the Borrower
and its Restricted Subsidiaries enjoys peaceful and undisturbed possession
under all such material leases.
(c) Each of the Borrower and its Restricted Subsidiaries owns or
possesses, or could obtain ownership or possession of, on terms not
materially adverse to it, all patents, trademarks, service marks, trade
names, copyrights, licenses and rights with respect thereto necessary for the
present conduct of its business, without any known conflict with the rights
of others, and free
from any burdensome restrictions, except where such conflicts and
restrictions could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.08. SUBSIDIARIES. Schedule 3.08 hereto sets forth as of the
date hereof a list of all Subsidiaries of the Borrower and the percentage
ownership interest of the Borrower therein. As of the date hereof, the
shares of Capital Stock or other ownership interests so indicated on SCHEDULE
3.08 are fully paid and non-assessable and are owned by the Borrower,
directly or indirectly, free and clear of all Liens.
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as set forth on SCHEDULE 3.09 hereof, there are not any
actions, suits or proceedings at Law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary of the
Borrower or any business, property or rights of any such Person (i) that
involve this Agreement or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect.
(b) None of the Borrower or any of its Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any Law, or is in default with respect to any judgment,
writ, injunction, decree or order of any Governmental Authority, where such
violation or default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10. AGREEMENTS.
(a) Neither the Borrower nor any of its Subsidiaries is a party to any
agreement or subject to any corporate restriction that, since December 31,
1996, has resulted or could reasonably be expected to result in a Material
Adverse Effect, except as disclosed on SCHEDULE 3.10 hereof.
(b) Neither the Borrower nor any of its Restricted Subsidiaries is in
default in any manner under any provision of any indenture or other agreement
or instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.11. FEDERAL RESERVE REGULATIONS.
(a) Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan, Competitive Loan or any Letter
of Credit will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations
of the Board, including Regulation G, U or X.
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. Neither the Borrower nor any Subsidiary of the Borrower is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. USE OF PROCEEDS. The Borrower will use the proceeds of
the Loans, Competitive Loans and will request the issuance of Letters of
Credit only (a) for the refinancing of existing indebtedness of the Borrower,
(b) to fund strategic acquisitions and mergers (and other similar corporate
transactions which have the same effect as a merger or acquisition) in each
case that are permitted by this Agreement and the other Loan Papers, (c) for
working capital and (d) for other general corporate purposes.
SECTION 3.14. TAX RETURNS. Each of the Borrower and its Restricted
Subsidiaries has filed or caused to be filed all Federal, state, and material
local and foreign tax returns or materials required to have been filed by it
and has paid or caused to be paid all taxes due and payable by it and all
assessments received by it, except taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such
Restricted Subsidiary, as applicable, shall have set aside on its books
adequate reserves.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. No written information,
report, financial statement, exhibit or schedule prepared by the Borrower and
furnished to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement and the other Loan Papers, or included herein
or delivered pursuant hereto contained, contains or will contain when
furnished, any material misstatement of fact or omitted, omits or will omit
when furnished to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were, are or will
be made, not misleading.
SECTION 3.16. EMPLOYEE BENEFIT PLANS. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in liability of the Borrower or any
Subsidiary of the Borrower which would be material to the Borrower and its
Subsidiaries on a consolidated basis.
SECTION 3.17. SOLVENCY.
(a) Immediately after the consummation of the Transactions and the
other transactions to occur on the Closing Date and immediately following the
making of each Loan or Competitive Loan made and the issuance of each Letter
of Credit issued and after giving effect to the application of the proceeds
thereof, (i) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the
debts and liabilities, direct, subordinated, contingent or otherwise, of the
Borrower and its Subsidiaries on a consolidated basis; (ii) the present fair
saleable value of the property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to
pay the probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) the Borrower and its Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Closing Date.
(b) The Borrower does not intend to, and does not believe that it or
any Subsidiary of the Borrower will, incur debts beyond its ability to pay
such debts as they mature, taking into account the timing and amounts of cash
to be received by it or any such Subsidiary and the timing and amounts of
cash to be payable on or in respect of its Indebtedness or the Indebtedness
of any such Subsidiary.
SECTION 3.18. INSURANCE. Schedule 3.18 hereto sets forth a true,
complete and correct description of all insurance maintained by or for the
Borrower or for or by its Restricted Subsidiaries as of the date hereof and
the Closing Date. As of each such date, such insurance is in full force and
effect and all premiums have been duly paid. The Borrower and its Restricted
Subsidiaries have insurance in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice.
SECTION 3.19. LABOR MATTERS. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against the Borrower or any
of its Subsidiary pending or, to the knowledge of the Borrower, threatened
which could reasonably be expected to have a Material Adverse Effect. The
hours worked by and payments made to employees of the Borrower and its
Restricted Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign Law
dealing with such matters. All payments due from the Borrower or any
Restricted Subsidiary of the Borrower, or for which any claim may be made
against the Borrower or any Restricted Subsidiary of the Borrower, on account
of wages and employee health and welfare insurance and other benefits, have
been paid or accrued as a liability on the books of the Borrower or such
Restricted Subsidiary. The consummation of the Transactions to be
consummated on or prior to the Closing Date will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any Restricted
Subsidiary of the Borrower is bound.
SECTION 3.20. ENVIRONMENTAL MATTERS. Except as set forth in SCHEDULE
3.20:
(a) The properties owned, operated or leased by the Borrower and its
Subsidiaries (the "PROPERTIES") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation
of, or (ii) could reasonably be expected to give rise to liability under,
Environmental Laws, which violations and liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(b) All Environmental Permits have been obtained and are in effect with
respect to the Properties and operations of the Borrower and its
Subsidiaries, and the Properties and all operations of the Borrower and its
Subsidiaries are in compliance, and in the last two years have been in
compliance, with all Environmental Laws and all necessary Environmental
Permits, except to the extent that such non-compliance or failure to obtain
any necessary permits, in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect;
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or its Subsidiaries or with regard to any Person
whose liabilities for environmental matters the Borrower or any of its
Subsidiaries has retained or assumed, in whole or in part, contractually,
which, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect, nor do the Borrower or any of its Subsidiaries have knowledge
that any such notice will be received or is being threatened; and
(d) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of
at, on or under any of the Properties in a manner that could reasonably be
expected to give rise to liability under any Environmental Law, nor have the
Borrower or its Subsidiaries retained or assumed any liability contractually,
with respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or disposal,
or retained or assumed liabilities, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties made under this Agreement and the other Loan
Papers shall be deemed to be made at and as of the Closing Date and at and as
of the date of each borrowing under either the Revolving Loans or the
Competitive Loans, and each shall be true and correct when made, except to
the extent (a) previously fulfilled in accordance with the terms hereof, (b)
subsequently inapplicable, or (c) previously waived in writing by the
Administrative Agent and Lenders with respect to any particular factual
circumstance. The representations and warranties made under this Agreement
and the other Loan Papers shall be deemed applicable to each Subsidiary of
the Borrower as of the formation or acquisition of such Subsidiary and at and
as of each date the representations and warranties are remade pursuant to
this provision. All representations and
warranties made under this Agreement and the other Loan Papers shall survive,
and not be waived by, the execution hereof by the Administrative Agent and
Lenders, any investigation or inquiry by the Administrative Agent or any
Lender, or by the making of any Loan or Competitive Loan under this Agreement
and the other Loan Papers.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans or Competitive Loans and of
the Issuing Bank to issue Letters of Credit hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. ALL CREDIT EVENTS. On the date of each borrowing, and on
the date of each issuance of a Letter of Credit (each such event being called
a "CREDIT EVENT"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or 2.04 hereof, as applicable (or such
notice shall have been deemed given in accordance with Section 2.04 hereof),
or, in the case of the issuance of a Letter of Credit, the Issuing Bank and
the Administrative Agent shall have received a duly completed Application and
a notice requesting the issuance of such Letter of Credit, required by
Section 2.21(b) hereof.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of
such Credit Event with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to
an earlier date, and there shall have occurred no event which caused a
Material Adverse Effect.
(c) The Borrower and each of its Subsidiaries shall be in compliance in
all material respects with the terms and provisions set forth herein on its
part to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. FIRST CREDIT EVENT. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of the Senior
Vice President, Legal and General Counsel of the Borrower and its
Subsidiaries in connection with the Transactions in each case (y)
dated the Closing Date, and (z) covering such other matters relating to this
Agreement and the Transactions as the Administrative Agent shall reasonably
request in form reasonably acceptable to the Administrative Agent and its
counsel, and the Borrower hereby requests and instructs such counsel to
deliver such opinions. The opinions shall be addressed to the Issuing Bank,
the Administrative Agent and the Lenders.
(b) All legal matters incident to this Agreement, the Borrowings, the
Transaction and extensions of credit hereunder shall be reasonably
satisfactory to the Lenders, to the Issuing Bank and to the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto,
of the Borrower and each of its Restricted Subsidiaries, certified as of a
recent date by the Secretary of State of the state of its organization, and a
certificate as to the good standing of the Borrower and each of its
Restricted Subsidiaries as of a recent date, from such Secretary of State;
(ii) a certificate of the Secretary or Assistant Secretary of the Borrower
and each of its Restricted Subsidiaries, dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws of the Borrower and each of its Restricted Subsidiaries as in effect
on the Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board of Directors
of the Borrower and each of its Restricted Subsidiaries authorizing the
execution, delivery and performance of this Agreement and the borrowings
hereunder, as applicable, and that such resolutions have not been modified
rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of the Borrower and each of its
Restricted Subsidiaries have not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, (D) as to the incumbency and specimen signature
of each officer executing this Agreement or any other document delivered in
connection herewith on behalf of the Borrower and each of its Restricted
Subsidiaries, and (E) that attached thereto is a true and complete copy of
each of the Ascent Agreements as in effect on the Closing Date; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Lenders, the Issuing Bank or
Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C., counsel for the Administrative Agent, may
reasonably request.
(d) The Lenders shall have received a duly completed Compliance
Certificate dated the Closing Date and executed by a Financial Officer of the
Borrower, confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01 hereof, with paragraphs (f), (g), (h),
(i) and (j) of this Section 4.02, and demonstrating compliance by the
Borrower with the provisions of Sections 6.09 and 6.10 hereof, and certifying
to the fact that there exists no Default or Event of Default under the terms
of this Agreement, and consummating the Agreement and making the initial
Loans hereunder would not cause a Default or Event of Default.
(e) Each Lender and the Administrative Agent shall have received
payment in full of all Fees and other amounts due and payable on or prior to
the Closing Date, including reimbursement or payment of all reasonable
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(f) The Borrower shall have delivered duly executed and completed
copies to each of the Lenders of each of the following documents and
agreements, in form and substance satisfactory to each Lender: this
Agreement, applicable Fee Letters and guaranties of the Obligations executed
by all Guarantors. The Borrower shall have delivered a promissory note to
each Lender, in form and substance satisfactory to each such Lender, and any
other Loan Paper reasonably required by any Lender in connection with this
Agreement.
(g) All governmental and third party approvals necessary or advisable
in connection with the Transactions, and the continuing operations of the
Borrower and its Restricted Subsidiaries shall have been obtained and be in
full force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any Governmental Authority
which would restrain, prevent or otherwise impose adverse conditions on the
Transactions.
(h) There shall not have occurred any material change in the
capitalization (whether in debt or in equity), corporate structure or assets
of the Borrower or any of its Subsidiaries.
(i) No action, suit, litigation or similar proceeding by or before any
Governmental Authority shall exist or, in the case of litigation by a
Governmental Authority, be threatened, with respect to the Transactions
contemplated thereby or otherwise, which would be likely in the reasonable
opinion of the Required Lenders to have a Material Adverse Effect.
(j) The Lenders shall have received a certification from the chief
financial officer of the Borrower, in form and substance reasonably
satisfactory to the Lenders, as to the solvency of the Borrower and its
Subsidiaries on a consolidated basis on the Closing Date after giving effect
to the consummation of this Agreement and the Loan Papers.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitment has been terminated
and the Obligations shall have been paid in full and all Letters of Credit
have been canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, the Borrower will, and will cause each of its Restricted
Subsidiaries to:
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES.
(a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence, except as otherwise
expressly permitted under Section 6.05 hereof.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and
trade names material to the conduct of its business; comply in all material
respects with all applicable Laws, rules, regulations and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted;
and at all times maintain and preserve all property material to the conduct
of such business and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may
be properly conducted at all times.
SECTION 5.02. INSURANCE. Keep its insurable properties insured in
accordance with industry standards at all times by financially sound and
reputable insurers; maintain such other 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 public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may
be required by Law.
SECTION 5.03. OBLIGATIONS AND TAXES . Pay and discharge promptly when
due all taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property before the same
shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might give rise
to a Lien upon such properties or any part thereof; PROVIDED, HOWEVER, that
such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings and the
Borrower shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien.
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC . In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 105 days after the end of each fiscal year, its consolidated
and consolidating balance sheet and related consolidated and consolidating
statements of income and cash flow, showing the financial condition of the
Borrower and its consolidated Restricted Subsidiaries as of the close of such
fiscal year and the results of their operations during such year, and a
comparison of such financial position and results of operations as of the
corresponding date and for the
previous fiscal year, all audited (in the case of the consolidated financial
statements) by Deloitte & Touche, LLP or other independent public accountants
of recognized national standing acceptable to the Required Lenders and
accompanied by an opinion of such accountants (which shall not be qualified
in any material respect) to the effect that such consolidated financial
statements fairly present the financial condition and results of operations
of the Borrower and its consolidated Restricted Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
consolidated statements of earnings and cash flow showing the financial
condition of the Borrower and its consolidated Restricted Subsidiaries as of
the close of such fiscal quarter and the results of their operations during
such fiscal quarter and the then elapsed portion of the fiscal year, and a
comparison of such financial position and results of operations as of the
corresponding date and for the corresponding periods in the previous fiscal
year, all certified by one of its Financial Officers as fairly presenting the
financial condition and results of operations of the Borrower and its
consolidated Restricted Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustment;
(c) (i) concurrently with any delivery of financial statements under
sub-paragraph (a) above, a certificate of the accounting firm opining on or
certifying such statements (which certificate may be limited to accounting
matters and disclaim responsibility for legal interpretations) certifying
that no Event of Default has occurred in Sections 6.01, 6.02(h), 6.03, 6.04,
6.05, 6.06, 6.09 and 6.10 hereof; and (ii) concurrently with any delivery of
financial statements under sub-paragraph (a) or (b) above, a Compliance
Certificate of a Financial Officer of the Borrower certifying that no Event
of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and setting forth
computations demonstrating compliance with the covenants contained in
Sections 6.09 and 6.10 hereof;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements, registration statements (other
than on Form S-8) and other similar materials filed by the Borrower or any
Subsidiary of the Borrower with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the function of said
Commission, or with any national securities exchange, or distributed
generally to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Subsidiary of the Borrower, or compliance with the terms of this Agreement
and the other Loan Papers, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.05. LITIGATION AND OTHER NOTICES . Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice
of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken with
respect thereto;
(b) the (i) filing or commencement of, or any written threat or notice
of intention of any Person to file or commence, any action, suit or
proceeding, whether at Law or in equity or by or before any Governmental
Authority, or (ii) the making of any written claim, in either case against
the Borrower or any Affiliate thereof as to which there is a reasonable
possibility of an adverse determination and which if adversely determined,
could reasonably be expected to result in a Material Adverse Effect; and
(c) any development (including developments in pending litigation and
developments in pending or threatened labor disruption) that has resulted in,
or could reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.06. EMPLOYEE BENEFITS. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within
10 days after any Responsible Officer of the Borrower or any ERISA Affiliate
knows or has reason to know that, any ERISA Event has occurred that, alone or
together with any other ERISA Event could reasonably be expected to result in
liability of the Borrower in an aggregate amount exceeding $5,000,000, a
statement of a Financial Officer of the Borrower setting forth details as to
such ERISA Event and the action, if any, that the Borrower proposes to take
with respect thereto.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of Law are made
of all dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior written notice, to visit and inspect the financial records
and the properties of the Borrower or any Subsidiary of the Borrower at
reasonable times and as often as reasonably requested and to make extracts
from and copies of such financial records, and permit any representatives
designated by the Administrative Agent or any Lender to discuss the affairs,
finances and condition of the Borrower or any Subsidiary of the Borrower with
the officers thereof and (with the concurrence of the Administrative Agent)
independent accountants therefor (provided that the Borrower has the right to
have a representative present for any meeting with the Borrower's independent
accountants).
SECTION 5.08. USE OF PROCEEDS. Use the proceeds of the Loans,
Competitive Loans and request the issuance of Letters of Credit only (a) for
the refinancing of existing indebtedness of the Borrower, (b) to fund
strategic acquisitions and mergers (and other similar corporate transactions
which have the same effect as a merger or acquisition) in each case that are
permitted
by this Agreement and the other Loan Papers, (c) for working capital and (d)
for other general corporate purposes.
SECTION 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) Comply, and exercise best efforts to cause all lessees and other
Persons occupying its Properties to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; and obtain and renew all material Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action to the
extent required by and in accordance with Environmental Laws; provided,
however, that none of the Borrower or any of its Subsidiaries shall be
required to undertake any Remedial Action to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances.
(b) If a Default caused by reason of a breach of paragraph (a) above or
Section 3.20 hereof shall have occurred and be continuing, at the request of
the Required Lenders through the Administrative Agent, provide to the Lenders
within 45 days after such request, at the expense of the Borrower, a "Phase
1" environmental site assessment report for the Properties which are the
subject of such default prepared by an environmental consulting firm
acceptable to the Administrative Agent and indicating the presence or absence
of Hazardous Materials and the estimated cost of any compliance or Remedial
Action in connection with such Properties.
SECTION 5.10. COMPLIANCE WITH MATERIAL CONTRACTS. Except as set forth
in Section 6.07 hereof, maintain in full force and effect (including
exercising any available renewal option), and without amendment or
modification, each material contract, unless the failure so to maintain any
such material contract or replacement contract or contracts thereof (or any
amendment or modification thereto) could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitment has been terminated
and the Obligations have been paid in full and all Letters of Credit have
been canceled or have expired and all amounts drawn thereunder have been
reimbursed in full:
SECTION 6.01. INDEBTEDNESS OF THE BORROWER AND THE RESTRICTED
SUBSIDIARIES OF THE BORROWER. The Borrower shall not, and shall not cause or
permit any of its Restricted Subsidiaries to, issue any Preferred Stock, or
to issue, incur, create, assume or permit to exist any Indebtedness, except:
(a) so long as there exists no Default or Event of Default immediately
prior to and after giving effect to the incurrence of any such Indebtedness
or the issuance of any such Preferred Stock, the Borrower may incur
Indebtedness or issue Preferred Stock;
(b) Indebtedness of the Borrower and any Restricted Subsidiary of the
Borrower for borrowed money existing on the date hereof and set forth in
SCHEDULE 6.01 hereto, but not any extensions, renewals or replacements of
such Indebtedness;
(c) Indebtedness of any Restricted Subsidiary of the Borrower owed to
the Borrower or to a Wholly Owned Subsidiary that is also a Restricted
Subsidiary of the Borrower that does not otherwise violate any provision of
this Agreement or any other Loan Paper; and
(d) so long as there exists no Default or Event of Default at the time
of its incurrence, secured Indebtedness of any Restricted Subsidiary of the
Borrower up to an aggregate maximum amount outstanding at any one time for
all such Indebtedness of $10,000,000.
SECTION 6.02. LIENS. The Borrower will not, and will not cause or
permit any of its Restricted Subsidiaries to, create, incur, assume or permit
to exist any Lien on any of its property or assets (including stock or other
securities of any Person, including any Restricted Subsidiary) now owned or
hereafter acquired by it or them or on any income or revenues or rights in
respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Restricted
Subsidiaries existing on the date hereof and set forth in SCHEDULE 6.02
hereto; provided that such Liens shall secure only those obligations which
they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Restricted Subsidiary of the Borrower;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition and (ii) such Lien does not apply to any
other property or assets of the Borrower or any Restricted Subsidiary of the
Borrower;
(c) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03 hereof;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03 hereof, which, in the aggregate, are not
substantial in amount and do not materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Restricted Subsidiaries;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security Laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course or business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries; and
(h) Liens on assets of the Restricted Subsidiaries of the Borrower
securing Indebtedness of the Restricted Subsidiaries of the Borrower that is
permitted to be incurred by Section 6.01(d) hereof.
SECTION 6.03. SALE AND LEASE BACK TRANSACTIONS; OFF-BALANCE SHEET
FINANCINGS. The Borrower will not, and will not cause or permit any of its
Restricted Subsidiaries to:
(a) Enter into any arrangement, directly or indirectly, with any person
whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to
use for substantially the same purpose or purposes as the property being sold
or transferred; PROVIDED, HOWEVER, that the Borrower or a Restricted
Subsidiary of the Borrower may enter into (i) any operating lease, (ii)
Equipment Lease Transactions permitted by paragraph (b) of this Section and
(iii) Capital Lease Obligations secured by purchase money security interests
permitted by Section 6.02(h) hereof to finance the initial acquisition of
real property, equipment or other assets.
(b) Directly or indirectly enter into or be or become liable with
respect to any Equipment Lease Transactions, other than Equipment Lease
Transactions of the Borrower and all of its Restricted Subsidiaries, which do
not in the aggregate at any time have Attributable Debt in an amount in
excess of 20% of the Borrower's Consolidated Tangible Net Worth as of the
last day of the most recently ended fiscal quarter of the Borrower.
SECTION 6.04. INVESTMENTS, ACQUISITIONS, LOANS AND ADVANCES. The
Borrower will not, and will not cause or permit any of its Restricted
Subsidiaries to, purchase, hold or acquire any Capital Stock, evidences of
indebtedness or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest
in, or make any acquisition of assets of any other Person as a going concern
(each, an "INVESTMENT"), except:
(a) Investments existing on the date hereof in the Capital Stock set
forth on SCHEDULE 6.04 hereto;
(b) Permitted Investments;
(c) Investments consisting of loans or advances to (i) a Wholly Owned
Subsidiary that is a Restricted Subsidiary, provided that such loans or
advances are not subordinated to any other Indebtedness or other obligations
of such Restricted Subsidiary and rank pari passu with all senior, unsecured
Indebtedness of such Restricted Subsidiary, or (ii) employees of the Borrower
or the Wholly Owned Subsidiaries that are Restricted Subsidiaries, provided
that such loans or advances are made in the ordinary course of business and
in accordance with company policy, and provided further that the proceeds of
such loan or advance are used to finance employee related expenses (including
relocation expenses and travel and entertainment expenses);
(d) additional equity Investments in any Wholly Owned Subsidiary of the
Borrower that is also a Restricted Subsidiary, provided that, immediately
after giving effect thereto, (i) the ratio of such Restricted Subsidiary's
consolidated liabilities (less borrowings by such Restricted Subsidiary
allowed and outstanding under this Agreement, deferred compensation, deferred
income and allocation of income to minority interests in earnings of
consolidated subsidiaries) to such Restricted Subsidiary's consolidated
assets (determined in accordance with GAAP) shall be less than 1.00 to 4.00
and (ii) the ratio of Consolidated Liabilities (less borrowings allowed and
outstanding under this Agreement, deferred compensation, deferred income and
allocation of income to minority interests in earnings of consolidated
subsidiaries) to Consolidated Assets shall be less than 1.00 to 4.00;
(e) Investments consisting of non-cash consideration received in
connection with a sale or disposition of assets permitted under Section 6.05
hereof; and
(f) so long as there exists no Default or Event of Default at the time
any such Investment is made, Investments (other than Investments described in
clauses (a) through (e) above) to the extent the aggregate amount thereof
made in any fiscal year does not exceed 10% of the Consolidated Assets as of
the last day of the immediately preceding fiscal year.
SECTION 6.05. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. The
Borrower will not, and will not cause or permit any of its Restricted
Subsidiaries to:
(a) merge into or consolidate with any Person, or permit any other
Person to merge into or consolidate with it, provided that, if there exists
no Default or Event of Default at the time thereof or immediately after
giving effect thereto (i) any Wholly Owned Subsidiary that is also a
Restricted Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (ii) any Wholly Owned Subsidiary
that is also a Restricted Subsidiary may merge into or consolidate with any
other Wholly Owned Subsidiary that is also a Restricted Subsidiary in a
transaction in which the surviving entity is a Wholly Owned Subsidiary that
is also a Restricted Subsidiary and no Person other than the Borrower or a
Wholly Owned Subsidiary that is also a Restricted Subsidiary receives any
consideration; or
(b) sell, transfer, lease or otherwise dispose of (in one transaction
or in a series of transactions) all or any substantial part of its assets
(whether now owned or hereafter acquired) or any amount of Capital Stock of
any Subsidiary of the Borrower, except that (i) the Borrower and any
Subsidiary of the Borrower may sell or dispose of inventory and obsolete
equipment in the ordinary course of business, (ii) if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing, the Borrower or any of its Subsidiaries may
sell or dispose of assets (not including Capital Stock owned by the Borrower
or any Subsidiary of the Borrower) for fair market value outside the ordinary
course of business (each an "ASSET DISPOSITION") as long as the cumulative
aggregate noncash consideration for all such Asset Dispositions after the
date hereof shall not exceed $10,000,000 in fair market value and provided
that the aggregate Net Cash Proceeds of all such Asset Dispositions are, to
the extent they exceed 15% of Consolidated Tangible Assets applied in
accordance with the terms of Section 2.12(c) hereof to repay the Loans and
reduce the Commitment, and (iii) in addition to (i) and (ii) above, if at the
time thereof and immediately after giving effect thereto no Event of Default
or Default shall have occurred and be continuing, the Borrower may transfer
control, through a sale, corporate transaction or other disposition, of the
hotel contracts and related assets for its hotel customers outside of the
United States.
SECTION 6.06. DIVIDENDS AND DISTRIBUTIONS; RESTRICTIONS ON ABILITY OF
SUBSIDIARIES TO PAY DIVIDENDS. The Borrower will not, and will not cause or
permit any of its Restricted Subsidiaries to, declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, with respect to any shares of its Capital Stock or directly or
indirectly redeem, purchase, retire or otherwise acquire for value (or permit
any Restricted Subsidiary of the Borrower to purchase or acquire) any shares
of any class of its Capital Stock or set aside any amount for any such
purpose (each, a "RESTRICTED PAYMENT"); provided, however, that (a) any
Restricted Subsidiary of the Borrower may declare and pay any Restricted
Payment to another Wholly Owned Subsidiary that is also a Restricted
Subsidiary or to the Borrower, (b) so long as there exists no Default or
Event of Default both before and after giving effect to such Restricted
Payment, the Borrower may make redemptions or repurchases of its Capital
Stock in connection with employee stock options upon termination of such
employment, for an aggregate amount of consideration paid from and after the
date hereof of up to $10,000,000, in connection with any employee stock
option or incentive plans, (c) until the later of (i) January 1, 1999 and
(ii) such time as the Leverage Ratio is less than 2.50 to 1.00 for three
consecutive months and after giving effect to any proposed Restricted
Payment, and so long as in each case there exists no Default or Event of
Default both before and after giving effect to such Restricted Payment, the
Borrower may make Restricted Payments which, in the aggregate for all such
Restricted Payments over the term of this Agreement, do not exceed the sum of
(A) $10,000,000 plus (B) Free Cash Flow over the term of this Agreement, and
(d) after the later of (i) January 1, 1999 and (ii) such time as the Leverage
Ratio is less than 2.50 to 1.00 for three consecutive months and after giving
effect to any proposed Restricted Payment, and so long as in each case there
exists no Default or Event of Default both before and after giving effect to
such Restricted Payment, the Borrower may make Restricted Payments.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. Except in accordance with
the terms of Section 6.06 hereof, the Borrower will not, and will not cause
or permit any of its Restricted Subsidiaries to, sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, or permit any Restricted
Subsidiary of the Borrower to sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise engage in any
other transactions with any of its Affiliates, except that the Borrower or
any Restricted Subsidiary of the Borrower may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Restricted Subsidiary
than could be obtained on an arm's length basis from unrelated third parties;
PROVIDED, HOWEVER, that the foregoing shall not preclude the Borrower nor any
Restricted Subsidiary of the Borrower from performing and complying with its
obligations under the Ascent Agreements in accordance with the terms thereof
on the date hereof or, so long as any such amendment (or extension to
additional services, in the case of the Services Agreement) does not
materially adversely affect the interests of the Administrative Agent, the
Issuing Bank or the Lenders, as the same may be hereafter amended (or
extended to additional services). Notwithstanding anything in this Agreement
or the other Loan Papers to the contrary, it is understood by all parties
hereto that all or any of the Ascent Agreements may be terminated by the
parties thereto at any time during the term of this Agreement.
SECTION 6.08. LIMITATION ON RESTRICTIVE AGREEMENTS. The Borrower will
not, and will not cause or permit any of its Restricted Subsidiaries to,
enter into any indenture, agreement, instrument, financing document or other
arrangement which, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse
conditions upon: (a) the granting of Liens, (b) the making or granting of
Guarantees, (c) the payment of dividends or distributions, (d) the purchase,
redemption or retirement of any Capital Stock, (e) the making of loans or
advances or (f) transfers or sales of property or assets (including Capital
Stock) by the Borrower or any of its Restricted Subsidiaries, other than
restrictions on the granting of Liens on, or the transfer of, assets that are
encumbered by Liens permitted under clauses (b) and (h) of Section 6.02
hereof with respect to the property or assets covered by such Lien only.
SECTION 6.09. LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio as of the last day of any fiscal quarter ending during any
period set forth below to be more than the ratio set forth below for such
period:
Quarter Ending Ratio Ratio
-------------------- -----
From the Closing Date to
through December 31, 1999 3.00 to 1.00
January 1, 2000 and thereafter 2.50 to 1.00
In the event that the Borrower shall complete, directly or through a
Restricted Subsidiary of the Borrower, a permitted acquisition, the Leverage
Ratio shall be determined thereafter, to the extent necessary, by computing
such ratio on a pro forma basis as if such acquisition had been completed on
the first day of the period of four consecutive fiscal quarters ending on the
dates indicated above occurring after the date of such acquisition.
SECTION 6.10. COVERAGE RATIO. The Borrower will not permit the
Coverage Ratio as of the last day of any fiscal quarter to be less than 4.00
to 1.00. In the event that the Borrower shall complete, directly or through
a Restricted Subsidiary of the Borrower, a permitted acquisition, the
Coverage Ratio shall be determined thereafter, to the extent necessary, by
computing such ratio on a pro forma basis as if such acquisition had been
completed on the first day of the period of four consecutive fiscal quarters
ending on the dates indicated above occurring after the date of such
acquisition.
SECTION 6.11. AMENDMENTS TO ORGANIZATIONAL DOCUMENTS. The Borrower
will not, and will not cause or permit any of its Restricted Subsidiaries to,
enter into any amendment of any term or provision, or accept any consent or
waiver with respect to any such provision, of its articles of incorporation,
by-laws, or its organizational documents, as applicable, in any manner that
is material and adverse to the Lenders.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("EVENTS OF
DEFAULT"):
(a) any representation or warranty made or deemed made by the Borrower
or any of its Subsidiaries in, or in connection with, this Agreement or in
any other Loan Paper, or the borrowings or issuances of Letters of Credit
hereunder, or any representation, warranty, statement or written information
contained in any report, certificate, financial statement or other instrument
prepared by the Borrower or any Subsidiary of the Borrower and furnished by
the Borrower or any Subsidiary of the Borrower in connection with or pursuant
to this Agreement or any other Loan Paper, or in connection with any of the
transactions contemplated to occur as of the Closing Date, shall prove to
have been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of any Loan
or Competitive Loan or the reimbursement of principal with respect to any L/C
Disbursement when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
Competitive Loan or any Fee or L/C Disbursement or any other amount (other
than an amount referred to in (b) above) due under this Agreement or any
other Loan Paper, when and as the same shall become due and payable, and such
default shall continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of the Borrower of any covenant, condition or
agreement contained in Sections 5.01(a), 5.05 or 5.08 hereof or in Article VI
hereof;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of the Borrower of any covenant, condition or
agreement contained in this Agreement (other than those specified in (b), (c)
or (d) above) or in any other Loan Paper and such default shall continue
unremedied for a period of 15 days after notice thereof from the
Administrative Agent or any Lender to the Borrower;
(f) the Borrower or any Subsidiary of the Borrower shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of any
Indebtedness in an aggregate principal amount in excess of $10,000,000, when
and as the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such Indebtedness if the
effect of any failure referred to in this clause (ii) is to cause, or to
permit the holder or holders of such indebtedness or a trustee on its or
their behalf (with or without the giving of notice, the lapse of time or
both) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Subsidiary of the Borrower, or of a
substantial part of the property or assets of the Borrower or a Subsidiary of
the Borrower, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar Law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary of the Borrower or for a substantial part of the
property or assets of the Borrower or a Subsidiary of the Borrower or (iii)
the winding-up or liquidation of the Borrower or any Subsidiary of the
Borrower; and such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) the Borrower or any Subsidiary of the Borrower shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy, insolvency, receivership
or similar Law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary of the Borrower, or for a substantial part
of
the property or assets of the Borrower or any Subsidiary of the Borrower,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower, any
Subsidiary of the Borrower or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of the
Borrower or any Subsidiary of the Borrower to enforce any such judgment;
(j) an ERISA Event shall have occurred that, when taken together with
all other such ERISA Events, could reasonably be expected to result in
liability of the Borrower, any Subsidiary of the Borrower, or any combination
thereof, in an aggregate amount exceeding $10,000,000;
(k) there shall have occurred a Change in Control;
(l) any of the following shall occur: (i) This Agreement, any
guarantee or promissory note executed in connection with this Agreement
(collectively, the "Material Agreements"), or any material provision of any
thereof shall, for any reason, not be valid and binding on the Obligor
signatory thereto, or not be in full force and effect, or shall be declared
to be null and void; or (ii) the validity or enforceability of any Material
Agreement shall be contested by any Obligor, the Borrower, any Subsidiary of
the Borrower or any of their Affiliates; or (iii) any Obligor shall deny in
writing that it has any or further liability or obligation under its
respective Material Agreements; or (iv) any default or breach under any
provision of any Material Agreement shall continue after the applicable grace
period, if any, specified in such Material Agreement; or
(m) the debt limitation on the Borrower in the Corporate Agreement with
Ascent operates to limit the ability of the Borrower to make a borrowing
hereunder at a time when the Borrower needs such ability to meet operating
expenses or capital requirements in each case approved by the Borrower's
Board of Directors (as such approval may be amended), provided that, no
amendment to any such approval may be made once operating expenses or capital
requirements have been incurred or made, or to avoid a Default or an Event of
Default under this subsection (m);
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at
the request of the Required Lenders shall, by notice to the Borrower, take
any one or more of the following actions, at the same or different times: (i)
terminate forthwith the Commitment, (ii) declare the Loans or Competitive
Loans then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans or
Competitive Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder (including, without limitation, the L/C Exposure),
shall become forthwith due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by
the Borrower, anything contained herein to the contrary notwithstanding or
(iii) require cash collateral as contemplated by Section 2.21(j) hereof; and
in any event with respect to the Borrower described in paragraph (g) or (h)
above, the Commitment shall automatically terminate and the principal of the
Loans or Competitive Loans then outstanding, together with accrued interest
hereon and any unpaid accrued Fees and all other liabilities of the Borrower
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding. Notwithstanding anything in this Agreement or in
any Loan Paper to the contrary, to the extent any Default or Event of Default
under any of subsections (a), (d) or (e) above is due exclusively to the
actions, inactions or misrepresentations with respect to any foreign
Subsidiary of the Borrower, then such event shall not be a Default or Event
of Default unless such event could also reasonably be expected to cause a
Material Adverse Effect.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement and
the other Loan Papers, NationsBank is hereby appointed to act as
Administrative Agent on behalf of the Lenders and the Issuing Bank. Each of
the Lenders and each assignee of any such Lender, hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of such
Lender or assignee or the Issuing Bank and to exercise such powers as are
specifically delegated to the Administrative Agent by the terms and
provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized
by the Lenders and the Issuing Bank, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders and the Issuing Bank all
payments of principal of and interest on the Loans and Competitive Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing
Bank its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Borrower of any Event of Default
specified in this Agreement and the other Loan Papers of which the
Administrative Agent has actual knowledge acquired in connection with its
agency hereunder; and (c) to distribute to each Lender copies of all notices,
financial statements and other materials delivered by the Borrower pursuant
to this Agreement and the other Loan Papers as received by the Administrative
Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted
by any of them except for its or his own
gross negligence or wilful misconduct, or be responsible for any statement,
warranty or representation herein or the contents of any document delivered
in connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by the Borrower of any of the terms,
conditions, covenants or agreements contained herein. The Administrative
Agent shall not be responsible to the Lenders for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement, the
other Loan Papers or any other instruments or agreements. The Administrative
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required
Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on
all the Lenders. The Administrative Agent shall, in the absence of knowledge
to the contrary, be entitled to rely on any instrument or document believed
by it in good faith to be genuine and correct and to have been signed or sent
by the proper Person or Persons. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall have any responsibility to
the Borrower on account of the failure of or delay in performance or breach
by any Lender or the Issuing Bank of any of its obligations hereunder or to
any Lender or the Issuing Bank on account of the failure of or delay in
performance or breach by any other Lender or the issuing Bank or the Borrower
of any of their respective obligations hereunder or in connection herewith.
The Administrative Agent may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder
and shall not be liable for any action taken or suffered in good faith by it
in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Paper unless
it shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower, and may be removed at any time with
or without cause by the action of all Lenders (other than Administrative
Lender, if it is a Lender). Upon any such resignation, the Required Lenders
shall have the right to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank
having a combined capital and surplus of at least $500,000,000 or an
Affiliate of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After
the Administrative Agent's resignation or removal hereunder, the provisions
of this Article and Section 9.05 hereof shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
With respect to the Loans or Competitive Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as Administrative
Agent shall have the same rights and powers as any other Lender (subject to
Section 2.03(f)) and may exercise the same as though it were not the
Administrative Agent, and the Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary of the Borrower or other
Affiliate thereof as if it were not Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on demand,
in the amount of its pro rata share (based on its Pro Rata Percentage of the
Commitment hereunder) of any expenses incurred for the benefit of the Lenders
by the Administrative Agent, including reasonable counsel fees and
compensation of agents and employees paid for services rendered on behalf of
the Lenders, that shall not have been reimbursed by the Borrower and (b) to
indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such
pro rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be Imposed on,
incurred by or asserted against it in its capacity as the Administrative
Agent or any of them in any way relating to or arising out of this Agreement
or any other Loan Paper, or any action taken or omitted by it or any of them
under this Agreement or any other Loan Paper, to the extent the same shall
not have been reimbursed by the Borrower; provided that no Lender shall be
liable to the Administrative Agent or any such other indemnified Person for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of the Administrative
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Papers.
Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement and the other Loan Papers, or any related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy,
as follows:
(a) if to the Borrower, to it at:
On Command Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy to:
On Command Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy to:
Ascent Entertainment Group., Inc.
One Xxxxx Center, Suite 2800
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxx Xxxxxx
Telephone:
Telecopy No.: (000) 000-0000
With a copy to:
Ascent Entertainment Group, Inc.
One Xxxxx Center, Suite 2800
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to the Administrative Agent, to it at:
NationsBank of Texas, National Association
NationsBank Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxx
Vice President
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.
3400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx Xxxxxxx
(c) if to a Lender, to it at its address (or telecopy number) set forth
on the signature pages hereto or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement and the other Loan Papers shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in
this Section 9.01 or in accordance with the latest unrevoked direction from
such party given in accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement and the other Loan Papers shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive
the making by the Lenders of the Loans, Competitive Loans and the issuance of
Letters of Credit by the Issuing Bank, regardless of any investigation made
by the Lenders or the Issuing Bank or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan, Competitive Loan or any Fee or any other amount payable under this
Agreement or any other Loan Paper is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitment has not been terminated.
The provisions of Sections 2.13. 2.15, 2.19 and 9.05 hereof shall remain
operative and in full force and effect regardless of the expiration of the
term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitment,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Paper, or any
investigation made by or on behalf of the Administrative Agent, any Lender or
the Issuing Bank.
SECTION 9.03. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
SECTION 9.04. SUCCESSORS AND ASSIGNS.
(a) Whenever in this Agreement or any other Loan Paper any of the
parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party, and all covenants, promises
and agreements by or on behalf of the Borrower, the Administrative Agent, the
Issuing Bank or the Lenders that are contained in this Agreement and the
other Loan Papers shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement and the other Loan
Papers (including all or a portion of its Pro Rata Percentage of the
Commitment and the Loans, or the Competitive Loans at the time owing to it);
PROVIDED, HOWEVER, that (i) except in the case of an assignment to a Lender
or an Affiliate of such Lender, (x) the Borrower and the Administrative Agent
(and, in the case of any assignment of a portion of the Commitment, the
Issuing Bank) must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld; provided, however, that
Borrower's consent shall not be required during the continuance of an Event
of Default) and (y) the amount of the Commitment allocated to the assigning
Lender that is subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, if less, the
entire remaining amount of such Lender's Pro Rata Percentage of the
Commitment)
and will not result in the unassigned portion, if any, of the assigning
Lender's Pro Rata Percentage of the Commitment being less than $5,000,000
(provided, however, that the $5,000,000 amounts referred to in this clause
(i) shall be reduced ratably in accordance with any reductions in the
Commitment) (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 and (iii) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement and the other Loan Papers and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement and the other Loan Papers (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement and the other Loan Papers, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.13, 2.15, 2.19 and 9.05 hereof, as well as to any
Fees accrued for its account and not yet paid). The Borrower shall, at its
expense, issue to the assignor and assignee new promissory notes, as
applicable, in the respective amounts of each such Lender's Pro Rata
Percentage in the Loans, or such Lender's Competitive Loans, each in the form
of the promissory notes delivered by the Borrower on the Closing Date.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim
and that its Pro Rata Percentage of the Commitment, and the outstanding
balances of its Revolving Loans and Competitive Loans, in each case without
giving effect to assignments thereof which have nor become effective, are as
set forth in such Assignment and Acceptance; (ii) except as set forth in (i)
above, such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other
Loan Paper, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Paper,
or any other instrument or document furnished pursuant hereto, or the
financial condition of the Borrower or any Subsidiary of the Borrower or the
performance or observance by the Borrower or any Subsidiary of the Borrower
of any of its obligations under this Agreement or any other Loan Paper or any
other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 3.05 or delivered pursuant to Section 5.04
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
the other Loan Papers; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Papers as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which
by the terms of this Agreement and the other Loan Papers are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at its offices in Dallas, Texas a copy of each
Assignment and Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Pro Rata Percentage of the
Commitment of, and principal amount of the Loans and Competitive Loans owing
to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive and the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement and the
other Loan Papers, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred
to in paragraph (b) above and, if required, the written consent of the
Borrower, the Issuing Bank and the Administrative Agent to such assignment,
the Administrative Agent shall (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Lenders and the Issuing Bank. No assignment
shall be effective unless it has been recorded in the Register as provided in
this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing
Bank or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement and the other Loan Papers (including all or a portion of its Pro
Rata Percentage of the Commitment and the Loans or Competitive Loans owing to
it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this
Agreement and the other Loan Papers shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
entities shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.13, 2.15 and 2.19 hereof to the same extent as if
they were Lenders and (iv) the Borrower, the Administrative Agent, the
Issuing Bank and the Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement
and the other Loan Papers, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans, Competitive
Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement and the other Loan Papers (other
than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is
payable on the Loans, extending any scheduled principal payment date or date
fixed for the payment of interest on the Loans or increasing or extending the
Commitment).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.04. disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; PROVIDED that, prior to any such disclosure
of information designated by the Borrower as confidential, each such assignee
or participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information
on terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16 hereof.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement and the other Loan Papers to a Federal Reserve Bank to
secure extensions of credit by such Federal Reserve Bank to such Lender;
PROVIDED that no such assignment shall release a Lender from any of its
obligations hereunder or substitute any such Bank for such Lender as a party
hereto. In order to facilitate such an assignment to a Federal Reserve Bank,
the Borrower shall, at the request of the assigning Lender, duly execute and
deliver to the assigning Lender a promissory note or notes evidencing the
Loans or Competitive Loans made to the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative
Agent, the Issuing Bank and each Lender, and any attempted assignment without
such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, a Division of
XxXxxx-Xxxx, Inc., Xxxxx'x Investors Service, Inc., and Xxxxxxxx'x BankWatch
(or Insurance Watch Ratings Service, in the case of Lenders that are
insurance companies (or Best's Insurance Reports, if such insurance company
is not rated by Insurance Watch Ratings Service)) shall, after the date that
any Lender becomes a Lender, downgrade the longterm certificate deposit
ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3
and C (or BB, in the case of a Lender that is an insurance company (or B, in
the case of an insurance company not rated by Insurance Watch Ratings
Service)), then the Issuing Bank shall have the right, but not the
obligation, at its own expense, upon notice to such Lender and the
Administrative Agent, to replace (or to request the Borrower to use its
reasonable efforts to replace) such Lender with an assignee (in accordance
with and subject to the restrictions contained in paragraph (b) above), and
such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions
contained in paragraph (b) above) all its interests, rights and obligations
in respect of its Pro Rata Percentage of the Commitment to such assignee;
PROVIDED, HOWEVER, that (i) no such assignment shall conflict with any Law,
rule and regulation or order of any Governmental Authority and (ii) the
Issuing Bank or such assignee, as the case may be, shall pay to such Lender
in immediately available funds on the date of such assignment the principal
of and interest accrued to the date of payment on the Loans or Competitive
Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. EXPENSES; INDEMNITY.
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Issuing Bank in connection with
the syndication of the credit facilities provided for herein and the
preparation and administration of this Agreement and the other Loan Papers or
in connection with any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions hereby or thereby contemplated shall
be consummated) or incurred by the Administrative Agent or any Lender in
connection with the enforcement or protection of its rights in connection
with this Agreement and the other Loan Papers, or in connection with the
Loans or Competitive Loans made or Letters of Credit issued hereunder,
including the reasonable fees, charges and disbursements of Xxxxxxx, Xxxxxxx
& Xxxxxxx, P.C., counsel for the Administrative Agent, and, in connection
with any such enforcement or protection, the fees, charges and disbursements
of any other counsel for the Administrative Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, each
Lender and the Issuing Bank, each Affiliate of any of the foregoing Persons
and each of their respective directors, officers, employees and agents (each
such Person being called an "INDEMNITEE") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of,
in any way connected with, or as a result of (i) the execution or delivery of
this Agreement and the other Loan Papers or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated thereby, (ii) the use of the proceeds of
the Loans, Competitive Loans or issuance of Lenders of Credit, or (iii) any
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of,
or breach of contract by, such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the other Loan Papers, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans or
Competitive Loans, the expiration of the Commitment, the expiration of any
Letter of Credit, the invalidity or unenforceability of any term or provision
of this Agreement, any other Loan Paper, or any investigation made by or on
behalf of the Administrative Agent, any Lender or the Issuing Bank. All
amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by Law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower against any of and
all the obligations of the Borrower now or hereafter existing under this
Agreement and the other Loan Papers held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Lender
under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN PAPERS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF TEXAS (EXCEPT, IN THE CASE OF CERTAIN OF THE LOAN PAPERS, TO THE EXTENT
THE LAWS OF ANOTHER JURISDICTION GOVERN THE PERFECTION AND EFFECT OF
PERFECTION OR NON-PERFECTION OF CERTAIN LIENS). EACH LETTER OF CREDIT SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT OR IF NO SUCH LAWS OR RULES ARE
DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE
"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF TEXAS.
SECTION 9.08. WAIVERS; AMENDMENT.
(a) No failure or delay of the Administrative Agent, any Lender or the
Issuing Bank in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Paper, or consent
to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof or in any other
Loan Paper may be waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by the Borrower and the Required
Lenders; PROVIDED, HOWEVER, that no such agreement shall (i) decrease the
principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan or
Competitive Loan or any date for reimbursement of an L/C Disbursement, or
waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan, Competitive Loan or L/C Disbursement, without the prior
written consent of each Lender affected thereby (ii) change or extend the
Commitment or decrease the Commitment Fees or the Facility Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify
the provisions of Sections 2.16 hereof, the provisions of this Section or the
definition of the term "Required Lenders", without the prior written consent
of each Lender; PROVIDED FURTHER that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent or the
Issuing Bank hereunder without the prior written consent of the
Administrative Agent or the Issuing Bank.
SECTION 9.09. INTEREST RATE LIMITATION. It is not the intention of any
party to any Loan Papers to make an agreement violative of the Laws of any
applicable jurisdiction relating to usury. In no event shall the Borrower or
any other Person be obligated to pay any amount in excess of the Maximum
Amount. If Administrative Agent or any Lender ever receives, collects or
applies, as interest, any such excess, such amount which would be excessive
interest shall be deemed a partial repayment of principal and treated
hereunder as such; and if principal is paid in full, any remaining excess
shall be paid to the Borrower or the other Person entitled thereto. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Maximum Amount, each Obligor, Administrative Agent
and each Lender shall, to the maximum extent permitted under Applicable Law,
(a) characterize any nonprincipal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effect
thereof, and (c) amortize, prorate, allocate and spread in equal parts, the
total amount of interest throughout the entire contemplated term of the
Obligation so that the interest rate is uniform throughout the entire term of
the Obligation; PROVIDED that if the Obligation is paid and performed in full
prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum
Amount, Administrative Agent or Lenders, as appropriate, shall refund to the
Borrower the amount of such excess or credit the amount of such excess
against the total principal amount owing, and, in such event, neither
Administrative Agent nor any Lender shall be subject to any penalties
provided by any Laws for contracting for, charging or receiving interest in
excess of the Maximum Amount. This Section 9.09 shall control every other
provision of all agreements among the parties to the Loan Papers pertaining
to the transactions contemplated by or contained in the Loan Papers.
SECTION 9.10. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN PAPER. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN PAPERS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Paper should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction
shall not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 9.13. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original but all of which when taken
together shall constitute a single contract, and shall become effective as
provided in Section 9.03 hereof. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of
a manually signed counterpart of this Agreement.
SECTION 9.14. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Texas State
court or Federal court of the United States of America sitting in Dallas,
Texas and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or any other Loan
Paper, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
such Texas State or, to the extent permitted by Law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Nothing in this
Agreement or in any other Loan Paper shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Paper against the Borrower or its properties in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Paper in any Dallas, Texas State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by Law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement and any other Loan Paper irrevocably
consents to service of process in the manner provided for notices in Section
9.01 hereof. Nothing in this Agreement or any other Loan Paper will affect
the right of any party to this Agreement or any other Loan Paper to serve
process in any other manner permitted by Law.
SECTION 9.16. CONFIDENTIALITY. The Administrative Agent, the Issuing
Bank and each of the Lenders agrees to keep confidential and to use its best
efforts to cause its respective agents and representatives to keep
confidential in accordance with its customary procedures for handling
confidential information the Information (as defined below) and all copies
thereof, extracts therefrom and analyses or other materials based thereon,
except that the Administrative Agent, the Issuing Bank or any Lender shall be
permitted to disclose Information (a) to such of its respective officers,
directors, employees, agents, affiliates and representatives as need to know
such Information, (b) to the extent requested by any regulatory authority,
(c) to the extent otherwise required by Applicable Laws and regulations or by
any subpoena or similar legal process, (d) in connection with any suit,
action or proceeding relating to the enforcement of its rights hereunder or
(e) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section 9.16 or (ii) becomes available to the
Administrative Agent the Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this
Section, "INFORMATION" shall mean all financial statements, certificates,
reports, agreements and information (including all analyses, compilations and
studies prepared by the Administrative Agent, the Issuing Bank or any Lender
based on any of the foregoing) that are received from the Borrower and
related to the Borrower, any shareholder of the Borrower or any employee,
customer or supplier of the Borrower, other than any of the foregoing that
were available to the Administrative Agent, the Issuing Bank or any Lender on
a nonconfidential basis prior to its disclosure thereto by the Borrower, and
which are in the case of Information provided
after the date hereof, clearly identified, in good faith at the time of
delivery as confidential. The provisions of this Section 9.16 shall remain
operative and in full force and effect regardless of the expiration and term
of this Agreement.
SECTION 9.17. AMENDMENT, RESTATEMENT, EXTENSION AND RENEWAL. This
Agreement is a renewal, extension, amendment and restatement of that certain
Existing Credit Agreement, and as such, except for the "Obligations" as defined
in the Existing Credit Agreement (which shall survive, be renewed, extended and
restated by the terms of this Agreement), all other terms and provisions
supersede in their entirety the Existing Credit Agreement. All Loan Papers
executed and delivered in connection with this Agreement shall, to the extent
stated therein, supersede the Loan Papers executed and delivered in connection
with the Existing Credit Agreement (the "Original Loan Papers"), except for the
Liens created under the Original Loan Papers which shall remain valid, binding
and enforceable Liens against the Borrower and each of the Guarantors, as
applicable, and each of the other Persons which granted such Liens.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
THE BORROWER:
ON COMMAND CORPORATION
/s/ Xxxx Xxxxxx
---------------------------------
By: Xxxx Xxxxxx
---------------------------
Its: Sr. V.P. Finance
---------------------------
85
THE ADMINISTRATIVE AGENT:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
as Administrative Agent
/s/ Xxxxxxx X. Xxxx
---------------------------------
By: Xxxxxxx X. Xxxx
Its: Vice President
86
LENDERS:
PRO RATA PERCENTAGE: NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, individually as a Lender
.27500000000
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
/s/ Xxxxxxx X. Xxxx
-------------------------------
By: Xxxxxxx X. Xxxx
Attn: Xxxxxxx X. Xxxx Its: Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
87
PRO RATA PERCENTAGE: BANQUE NATIONALE DE PARIS, SAN FRANCISCO
.07500000000
Address:
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 /s/ Xxxxx X. Xxxxxx
--------------------------------------
By: Xxxxx X. Xxxxxx
-----------------------------------
Attn: Xxxxx X. Xxxxxx Its: Vice President
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
/s/ Stephane Ronze
--------------------------------------
By: Stephane Ronze
-----------------------------------
Its: Assistant Vice President
-----------------------------------
88
PRO RATA PERCENTAGE: BANQUE PARIBAS
.12500000000
Address:
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxx
--------------------------------------
By: Xxxxxxx Xxxxx
-----------------------------------
Attn: Xxxxxxx Xxxxx Its: Vice President
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
By: Xxxxxx X. Xxxxxx
-----------------------------------
Its: Director
-----------------------------------
89
PRO RATA PERCENTAGE: THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY
.10000000000
Address:
000 X. Xxxx Xxxxxx, Xxxxx 0000 /s/ Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 ---------------------------------------
By: Xxxxxxxx Xxxxxx
------------------------------------
Attn: Xxx Xxxxxxxx Its: Joint General Manager
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
90
PRO RATA PERCENTAGE: KEYBANK NATIONAL ASSOCIATION
.07500000000
Address:
000 Xxxxx Xxxxxx, 00xx Xxxxx /s/ Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000 ---------------------------------------
By: Xxxx Xxxxx
------------------------------------
Attn: Xxxx Xxxxx Its: Commercial Banking Officer
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
91
PRO RATA PERCENTAGE: THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
.07500000000
Address:
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 /s/ T. Xxxxxx Xxxxxxx, XX
Xxx Xxxxxxx, Xxxxxxxxxx 00000 ---------------------------------------
By: T. Xxxxxx Xxxxxxx, XX
------------------------------------
Attn: Xxxxxxx Xxxx Its: Deputy General Manager
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
92
PRO RATA PERCENTAGE: THE SUMITOMO BANK, LIMITED, LOS ANGELES
BRANCH
.10000000000
Address:
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 /s/ Xxxx Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 ---------------------------------------
By: Xxxx Xxxxxxxx
------------------------------------
Attn: Xxxx Xxxxxxxx Its:
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
93
PRO RATA PERCENTAGE: CREDIT LYONNAIS LOS ANGELES BRANCH
.07500000000
Address:
000 Xxxxx Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
Suite 2200 ---------------------------------------
Xxx Xxxxxxx, Xxxxxxxxxx 00000 By: Xxxxxx X. Xxxxx
------------------------------------
Its: Vice President
Attn: Xxxxx Xxxxxx -----------------------------------
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
94
PRO RATA PERCENTAGE: BANK OF TOKYO-MITSUBISHI TRUST COMPANY
.10000000000
Address:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx /s/ Xxxxx X. Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 ---------------------------------------
By: Xxxxx X. Xxxxxx
------------------------------------
Attn: Emile ElNems Its: Vice President
Telephone: (000) 000-0000 -----------------------------------
Telecopy: (000) 000-0000
95
