$150,000,000
CREDIT AGREEMENT
among
MPS GROUP, INC.,
as Borrower
and
THE MATERIAL DOMESTIC SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTIES HERETO,
as Guarantors,
THE LENDERS PARTIES HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
Fleet National Bank,
as Syndication Agent,
Lloyds TSB Bank plc,
SunTrust Bank,
Xxxxxxx XXXXX BUSINESS FINANCIAL SERVICES INC,
as Co-Documentation Agents.
Dated as of November 21, 2003
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Book Runner
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................1
Section 1.1 Defined Terms..........................................................................1
Section 1.2 Other Definitional Provisions.........................................................25
Section 1.3 Accounting Terms......................................................................25
ARTICLE II THE LOANS; AMOUNT AND TERMS..........................................................................26
Section 2.1 Revolving Loans.......................................................................26
Section 2.2 Letter of Credit Subfacility..........................................................28
Section 2.3 Swingline Loan Subfacility............................................................31
Section 2.4 Fees..................................................................................33
Section 2.5 Commitment Reductions.................................................................34
Section 2.6 Prepayments...........................................................................34
Section 2.7 Lending Offices.......................................................................36
Section 2.8 Default Rate and Payment Dates........................................................36
Section 2.9 Conversion Options....................................................................37
Section 2.10 Computation of Interest and Fees......................................................37
Section 2.11 Pro Rata Treatment and Payments.......................................................38
Section 2.12 Non-Receipt of Funds by the Administrative Agent......................................40
Section 2.13 Inability to Determine Interest Rate..................................................41
Section 2.14 Illegality............................................................................41
Section 2.15 Requirements of Law...................................................................42
Section 2.16 Borrower's Indemnity of Lenders.......................................................43
Section 2.17 Taxes.................................................................................44
Section 2.18 Indemnification; Nature of Issuing Lender's Duties....................................46
ARTICLE III REPRESENTATIONS AND WARRANTIES......................................................................47
Section 3.1 Financial Condition...................................................................47
Section 3.2 No Change.............................................................................48
Section 3.3 Corporate Existence; Compliance with Law..............................................48
Section 3.4 Corporate Power; Authorization; Enforceable Obligations...............................48
Section 3.5 No Legal Bar; No Default..............................................................48
Section 3.6 No Material Litigation................................................................49
Section 3.7 Investment Company Act................................................................49
Section 3.8 Margin Regulations....................................................................49
Section 3.9 ERISA.................................................................................49
Section 3.10 Environmental Matters.................................................................50
Section 3.11 Use of Proceeds.......................................................................51
Section 3.12 Subsidiaries..........................................................................51
Section 3.13 Ownership.............................................................................51
Section 3.14 Indebtedness..........................................................................51
Section 3.15 Taxes.................................................................................51
Section 3.16 Intellectual Property.................................................................51
Section 3.17 Solvency..............................................................................52
Section 3.18 Investments...........................................................................52
Section 3.19 Location of Chief Executive Office....................................................52
Section 3.20 No Burdensome Restrictions............................................................52
Section 3.21 Brokers' Fees.........................................................................52
Section 3.22 Labor Matters.........................................................................53
Section 3.23 Security Documents....................................................................53
Section 3.24 Accuracy and Completeness of Information..............................................53
Section 3.25 Material Contracts....................................................................53
Section 3.26 Insurance.............................................................................53
Section 3.27 Tax Shelter Regulations...............................................................54
ARTICLE IV CONDITIONS PRECEDENT.................................................................................54
Section 4.1 Conditions to Closing Date and Initial Extensions of Credit...........................54
Section 4.2 Conditions to All Extensions of Credit................................................57
ARTICLE V AFFIRMATIVE COVENANTS.................................................................................58
Section 5.1 Financial Statements..................................................................58
Section 5.2 Certificates; Other Information.......................................................59
Section 5.3 Payment of Obligations................................................................61
Section 5.4 Conduct of Business and Maintenance of Existence......................................61
Section 5.5 Maintenance of Property; Insurance....................................................61
Section 5.6 Inspection of Property; Books and Records; Discussions................................61
Section 5.7 Notices...............................................................................62
Section 5.8 Environmental Laws....................................................................63
Section 5.9 Financial Covenants...................................................................63
Section 5.10 Additional Subsidiary Guarantors......................................................64
Section 5.11 Compliance with Law...................................................................64
Section 5.12 Pledged Assets........................................................................64
Section 5.13 Further Assurances Regarding Collateral...............................................65
ARTICLE VI NEGATIVE COVENANTS...................................................................................65
Section 6.1 Indebtedness..........................................................................65
Section 6.2 Liens.................................................................................66
Section 6.3 Nature of Business....................................................................66
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc................................66
Section 6.5 Advances, Investments and Loans.......................................................68
Section 6.6 Transactions with Affiliates..........................................................68
Section 6.7 Ownership of Subsidiaries; Restrictions...............................................68
Section 6.8 Fiscal Year; Organizational Documents; Material Contracts; Subordinated Indebtedness; Accounting
Policies..............................................................................69
Section 6.9 Limitation on Restricted Actions......................................................69
Section 6.10 Restricted Payments...................................................................70
Section 6.11 Sale Leasebacks.......................................................................70
Section 6.12 No Further Negative Pledges...........................................................70
ARTICLE VII EVENTS OF DEFAULT...................................................................................71
Section 7.1 Events of Default.....................................................................71
Section 7.2 Acceleration; Remedies................................................................73
ARTICLE VIII THE AGENT..........................................................................................74
Section 8.1 Appointment...........................................................................74
Section 8.2 Delegation of Duties..................................................................74
Section 8.3 Exculpatory Provisions................................................................74
Section 8.4 Reliance by Administrative Agent......................................................75
Section 8.5 Notice of Default.....................................................................75
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders................................76
Section 8.7 Lenders Indemnification of Agent......................................................76
Section 8.8 Administrative Agent in Its Individual Capacity.......................................77
Section 8.9 Successor Administrative Agent........................................................77
Section 8.10 Other Agents..........................................................................77
ARTICLE IX MISCELLANEOUS........................................................................................77
Section 9.1 Amendments, Waivers and Release of Collateral.........................................77
Section 9.2 Notices...............................................................................79
Section 9.3 No Waiver; Cumulative Remedies........................................................80
Section 9.4 Survival of Representations and Warranties............................................80
Section 9.5 Payment of Expenses and Taxes.........................................................80
Section 9.6 Successors and Assigns; Participations; Purchasing Lenders............................81
Section 9.7 Adjustments; Set-off..................................................................84
Section 9.8 Table of Contents and Section Headings................................................85
Section 9.9 Counterparts..........................................................................85
Section 9.10 Effectiveness.........................................................................85
Section 9.11 Severability..........................................................................85
Section 9.12 Integration...........................................................................85
Section 9.13 Governing Law.........................................................................86
Section 9.14 Consent to Jurisdiction and Service of Process........................................86
Section 9.15 [Intentionally Omitted]...............................................................86
Section 9.16 Confidentiality.......................................................................86
Section 9.17 Acknowledgments.......................................................................87
Section 9.18 Waivers of Jury Trial.................................................................88
ARTICLE X GUARANTY..............................................................................................88
Section 10.1 The Guaranty..........................................................................88
Section 10.2 Bankruptcy............................................................................89
Section 10.3 Nature of Liability...................................................................89
Section 10.4 Independent Obligation................................................................89
Section 10.5 Authorization.........................................................................90
Section 10.6 Reliance..............................................................................90
Section 10.7 Waiver................................................................................90
Section 10.8 Limitation on Enforcement.............................................................91
Section 10.9 Confirmation of Payment...............................................................92
Schedules
Schedule 1.1-1 Account Designation Letter
Schedule 1.1-2 Permitted Investments
Schedule 1.1-3 Permitted Liens
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.9 Form of Notice of Conversion/Extension
Schedule 2.17 2.17 Certificate
Schedule 3.12 Subsidiaries
Schedule 3.19 Chief Executive Offices
Schedule 3.22 Labor Matters
Schedule 3.26 Insurance
Schedule 4.1-1 Form of Secretary's Certificate
Schedule 4.1-2 Form of Solvency Certificate
Schedule 5.2(b) Form of Officer's Compliance Certificate
Schedule 5.10 Form of Joinder Agreement
Schedule 5.13 Collateral Matters
Schedule 9.2 Schedule of Lenders' Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
CREDIT AGREEMENT, dated as of November 21, 2003, among MPS GROUP, INC., a
Florida corporation (the "Borrower"), those Material Domestic Subsidiaries of
the Borrower identified as a "Guarantor" on the signature pages hereto and such
other Material Domestic Subsidiaries of the Borrower as may from time to time
become a party hereto (individually a "Guarantor" and collectively, the
"Guarantors"), the several banks and other financial institutions as may from
time to time become parties to this Agreement (collectively, the "Lenders"; and
individually, a "Lender"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent"), Fleet National Bank, as syndication agent
(in such capacity, the "Syndication Agent"), and Lloyds TSB Bank plc, SunTrust
Bank and Xxxxxxx Xxxxx Business Financial Services Inc., each as a
co-documentation agent (each in such capacity, a "Co-Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make loans and other
financial accommodations to the Borrower in the amount of up to $150,000,000, as
more particularly described herein; and
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Borrower on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble to this Agreement
have the meanings therein indicated, and the following terms have the following
meanings:
"Account Designation Letter" shall mean the Notice of Account Designation
Letter dated the Closing Date from the Borrower to the Administrative Agent
substantially in the form attached hereto as Schedule 1.1-1.
"Additional Credit Party" shall mean each Person that becomes a Guarantor
by execution of a Joinder Agreement in accordance with Section 5.10.
"Administrative Agent" shall have the meaning set forth in the first
paragraph of this Agreement and any successors in such capacity.
"Administrative Agent's Office" shall mean, with respect to any currency,
the Administrative Agent's address and, as appropriate, account as set forth on
Schedule 9.2 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"Affiliate" shall mean as to any Person, any other Person (excluding any
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition, a
Person shall be deemed to be "controlled by" a Person if such Person possesses,
directly or indirectly, power either (a) to vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or (b)
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agreement" or "Credit Agreement" shall mean this Credit Agreement, as
amended, restated, modified or supplemented from time to time in accordance with
its terms.
"Aggregate Revolving Committed Amount" shall have the meaning set forth in
Section 2.1.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
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%. For purposes hereof:
"Prime Rate" shall mean, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia at its principal office in Charlotte,
North Carolina as its prime rate. Each change in the Prime Rate shall be
effective as of the opening of business on the day such change in the Prime Rate
occurs. The parties hereto acknowledge that the rate announced publicly by
Wachovia as its Prime Rate is an index or base rate and shall not necessarily be
its lowest or best rate charged to its customers or other banks; and "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 New York, or, if such rate is not so
published on the next succeeding Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive in the absence of 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 thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, as appropriate, 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 opening of business on the date of such
change.
"Alternate Base Rate Loans" shall mean Loans that bear interest at an
interest rate based on the Alternate Base Rate.
"Applicable Percentage" shall mean, for any day, the rate per annum set
forth below opposite the applicable level then in effect, it being understood
that the Applicable Percentage for (i) Alternate Base Rate Loans shall be the
percentage set forth under the column "Alternate Base Rate Margin", (ii) LIBOR
Rate Loans shall be the percentage set forth under the column "LIBOR Rate Margin
and Letter of Credit Fees", (iii) the Letter of Credit Fees shall be the
percentage set forth under the column "LIBOR Rate Margin and Letter of Credit
Fees" and (vi) the Commitment Fee shall be the percentage set forth under the
column "Commitment Fee":
LIBOR Rate
Alternate Margin and
Leverage Base Rate Letter of Commitment
Level Ratio Margin Credit Fees Fee
I >2.0 to 1.00 0.750% 1.750% 0.500%
II <= 2.00 to 1.00 but 0.500% 1.500% 0.375%
> 1.50 to 1.00
III <= 1.50 to 1.00 but 0.250% 1.250% 0.375%
> 1.00 to 1.00
IV <= 1.00 to 1.00 0.000% 1.000% 0.300%
The Applicable Percentage shall, in each case, be determined and adjusted
quarterly on the date five (5) Business Days after the date on which the
Administrative Agent has received from the Borrower the financial information
and certifications required to be delivered to the Administrative Agent and the
Lenders in accordance with the provisions of Sections 5.1(a) and (b) and Section
5.2(b) (each an "Interest Determination Date"). Such Applicable Percentage shall
be effective from such Interest Determination Date until the next such Interest
Determination Date. The initial Applicable Percentages shall be based on Level
III until the first Interest Determination Date occurring after the delivery of
the officer's compliance certificate pursuant to Section 5.2(b) for the quarter
ended March 31, 2004. After the Closing Date, if the Borrower shall fail to
provide the quarterly financial information and certifications in accordance
with the provisions of Sections 5.1(a) and (b) and Section 5.2(b), the
Applicable Percentage from the date five (5) Business Days after the date by
which the Borrower was so required to provide such financial information and
certifications to the Administrative Agent and the Lenders, be based on Level I
until such time as such information and certifications are provided, whereupon
the Level shall be determined by the then current Leverage Ratio.
"Arranger" shall mean Wachovia Capital Markets, LLC, as Sole Lead Arranger
and Book Runner, together with its successors and/or assigns.
"Asset Coverage Ratio" shall mean, as of any date of determination, the
ratio of (a) Funded Debt of the Credit Parties and their Subsidiaries on a
consolidated basis to (b) the aggregate book value of Receivables of the Credit
Parties and their Subsidiaries on a consolidated basis.
"Asset Disposition" shall mean the disposition of any or all of the assets
(including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of any Credit Party or any Subsidiary
whether by sale, lease, transfer or otherwise. The term "Asset Disposition"
shall not include (i) the sale, lease, transfer or other disposition of assets
permitted by Section 6.4(a)(i), (ii), (iii), (iv), (v), (vii) or (viii) hereof
or (ii) any Equity Issuance.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Borrower" shall have the meaning set forth in the first paragraph of this
Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the date such Loan is
made.
"Business" shall have the meaning set forth in Section 3.10.
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close; provided, however, that when used in
connection with a rate determination, borrowing or payment in respect of a LIBOR
Rate Loan, the term "Business Day" shall also exclude any day on which banks in
London, England are not open for dealings in deposits of Dollars in the London
interbank market.
"Capitalization Ratio" shall mean with respect to the Credit Parties and
their Subsidiaries on a consolidated basis for the twelve month period ending on
the last day of any fiscal quarter of the Borrower, the ratio of (a) Funded Debt
of the Credit Parties and their Subsidiaries on a consolidated basis on the last
day of such period to (b) the sum of (i) Funded Debt of the Credit Parties and
their Subsidiaries on a consolidated basis on the last day of such period and
(ii) Consolidated Net Worth of the Credit Parties and their Subsidiaries on a
consolidated basis for such period.
"Capital Lease" shall mean any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" shall mean the capitalized lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Capital Stock" shall mean (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" shall mean (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("Government Obligations"), (b)
U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, eurodollar time deposits and eurodollar certificates of
deposit of (i) any domestic commercial bank of recognized standing having
capital and surplus in excess of $100,000,000 or (ii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being an
"Approved Bank"), in each case with maturities of not more than 364 days from
the date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any variable
rate notes issued by or guaranteed by any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within twelve months of the date of acquisition,
(d) repurchase agreements with an Approved Bank or a bank or trust company
(including a Lender) or a recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America or any agency thereof, (e)
obligations of any state of the United States of America or any political
subdivision thereof for the payment of the principal and redemption price of and
interest on which there shall have been irrevocably deposited Government
Obligations maturing as to principal and interest at times and in amounts
sufficient to provide such payment, (f) auction preferred stock rated in the
highest short-term credit rating category by S&P or Moody's, and (g) money
market funds the assets of which are primarily invested in the above.
"Change of Control" shall mean any Person or two or more Persons acting in
concert shall have acquired "beneficial ownership," directly or indirectly, of,
or shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of, or control over, Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 35% or more of the
combined voting power of all Voting Stock of the Borrower, or (b) Continuing
Directors shall cease for any reason to constitute a majority of the members of
the board of directors of the Borrower then in office. As used herein,
"beneficial ownership" shall have the meaning provided in Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Co-Documentation Agent" shall have the meaning set forth in the first
paragraph of this Agreement and any successors in such capacity.
"Collateral" shall mean a collective reference to the collateral which is
identified in, and at any time will be covered by, the Security Documents.
"Commitment" shall mean the Revolving Commitment, the LOC Commitment and
the Swingline Commitment, individually or collectively, as appropriate.
"Commitment Fee" shall have the meaning set forth in Section 2.4(a).
"Commitment Percentage" shall mean the Revolving Commitment Percentage and
the LOC Commitment Percentage, as appropriate.
"Commitment Period" shall mean the period from and including the Closing
Date to but not including the Maturity Date.
"Commitment Transfer Supplement" shall mean a Commitment Transfer
Supplement, substantially in the form of Schedule 9.6(c).
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated Capital Expenditures" shall mean, for any period, all capital
expenditures of the Credit Parties and their Subsidiaries on a consolidated
basis for such period, as determined in accordance with GAAP. The term
"Consolidated Capital Expenditures" shall not include capital expenditures in
respect of the reinvestment of proceeds derived from Recovery Events received by
the Credit Parties and their Subsidiaries to the extent that such reinvestment
is permitted under the Credit Documents.
"Consolidated EBITDA" shall mean, for any period, the sum of (a)
Consolidated Net Income for such period, plus (b) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(i) Consolidated Interest Expense, (ii) total federal, state, local and foreign
income, value added and similar taxes and (iii) depreciation, amortization
expense and other non-cash charges (including, without limitation, restructuring
charges, non-cash stock, option or compensation expense, non-recurring and
non-cash charges related to Non-Core Assets to the extent deducted in
calculating Consolidated Net Income, plus (c) amounts expensed as a result of
stock option buybacks which become cash charges during such period, minus (d)
cash payments during such period related to restructuring charges for which
reserves have been taken in the current period or prior periods, all as
determined in accordance with GAAP and as determined on a consolidated basis.
"Consolidated Fixed Charges" shall mean, with respect to the Borrower and
its Subsidiaries, for the periods indicated, the sum of, without duplication,
(a) Consolidated Interest Expense and (b) Scheduled Funded Debt Payments,
including, without duplication, payments made with respect to earnout
obligations, made during the four-quarter period ending on the date of
computation thereof.
"Consolidated Interest Expense" shall mean, for any period, all cash
interest expense of the Credit Parties and their Subsidiaries, as determined in
accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, net income (excluding
extraordinary items) after taxes for such period of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination, the
net worth for such period of the Credit Parties and their Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Consolidated Rental Expense" shall mean, for any period with respect to
the Credit Parties and their Subsidiaries on a consolidated basis, all rental
expenses of the Credit Parties and their Subsidiaries related to the lease of
real property during such period, as determined in accordance with GAAP.
"Consolidated Total Assets" shall mean, as of any date of determination,
total assets of the Credit Parties and their Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Continuing Directors" shall mean, during any period of up to 24
consecutive months commencing after the Closing Date, individuals who at the
beginning of such 24 month period were directors of the Borrower (together with
any new director whose election by the Borrower's board of directors or whose
nomination for election by the Borrower's shareholders was approved by a vote of
at least a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved).
"Copyright Licenses" shall mean any written agreement naming any Obligor as
licensor and granting any right under any Copyright.
"Copyrights" shall mean (a) all registered United States copyrights in all
Works, now existing or hereafter created or acquired, all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, registrations, recordings and applications in the United
States Copyright Office and (b) all renewals thereof including.
"Credit Documents" shall mean this Agreement, each of the Notes, any
Joinder Agreement, the LOC Documents, the Security Documents and each other
agreement, certificate, document or instrument delivered in connection with any
Credit Document, whether or not specifically mentioned herein or therein.
"Credit Party" shall mean any of the Borrower or the Guarantors.
"Credit Party Obligations" shall mean, without duplication, (i) all of the
obligations (including the Obligations) of the Credit Parties to the Lenders
(including the Issuing Lender) and the Administrative Agent, whenever arising,
under this Agreement, the Notes or any of the other Credit Documents (including,
but not limited to, any interest accruing after the occurrence of a filing of a
petition of bankruptcy under the Bankruptcy Code with respect to any Credit
Party, regardless of whether such interest is an allowed claim under the
Bankruptcy Code) and (ii) all liabilities and obligations, whenever arising,
owing from any Credit Party or any of its Subsidiaries to any Hedging Agreement
Provider arising under any Secured Hedging Agreement.
"Debt Issuance" shall mean the issuance of any Indebtedness for borrowed
money by any Credit Party or any of its Subsidiaries (excluding, for purposes
hereof, any Equity Issuance or any Indebtedness of any Credit Party and/or its
Subsidiaries permitted to be incurred pursuant to Section 6.1 hereof).
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" shall mean any of the events specified in Section 7.1, whether or
not any requirement for the giving of notice or the lapse of time, or both, or
any other condition, has been satisfied.
"Defaulting Lender" shall mean, at any time, any Lender that, at such time
(a) has failed to make a Loan required pursuant to the term of this Credit
Agreement, including the funding of a Participation Interest in accordance with
the terms hereof, (b) has failed to pay to the Administrative Agent or any
Lender an amount owed by such Lender pursuant to the terms of this Credit
Agreement, or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Lending Office" shall mean, initially, the office of each Lender
designated as such Lender's Domestic Lending Office shown on Schedule 9.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which Alternate Base Rate Loans of such Lender are to be made.
"Domestic Subsidiary" shall mean any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Environmental Laws" shall mean any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Agreement.
"Equity Issuance" shall mean any issuance by any Credit Party or any
Subsidiary to any Person which is not a Credit Party of (a) shares or interests
of its Capital Stock, (b) any shares or interests of its Capital Stock pursuant
to the exercise of options or warrants or other similar rights, (c) any shares
or interests of its Capital Stock pursuant to the conversion of any debt
securities to equity or (d) warrants or options or other similar rights which
are exercisable for or convertible into shares or interests of its Capital
Stock. The term "Equity Issuance" shall not include any Asset Disposition or any
Debt Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities, as defined in Regulation D of such Board as
in effect from time to time, or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
"Event of Default" shall mean any of the events specified in Section 7.1;
provided, however, with respect to any such event, that any requirement for the
giving of notice or the lapse of time, or both, or any other condition with
respect thereto, has been satisfied.
"Extension of Credit" shall mean, as to any Lender, the making of a Loan by
such Lender or the issuance of, or participation in, a Letter of Credit by such
Lender.
"Federal Funds Effective Rate" shall have the meaning set forth in the
definition of "Alternate Base Rate".
"Fee Letter" shall mean the letter agreement dated October 10, 2003
addressed to the Borrower from the Administrative Agent and the Arranger, as
amended, restated, modified, supplemented or otherwise replaced from time to
time.
"Fixed Charge Coverage Ratio" shall mean, with respect to the Credit
Parties and their Subsidiaries on a consolidated basis for the twelve month
period ending on the last day of any fiscal quarter of the Borrower, the ratio
of (a) Consolidated EBITDA for such period plus Consolidated Rental Expenses for
such period plus all amounts deducted from Consolidated Net Income (but not
added back in the determination of Consolidated EBITDA) attributable to the
payment of Consolidated Fixed Charges for such period to (b) Consolidated Fixed
Charges for such period plus Consolidated Rental Expense for such period.
"Foreign Acquisition" shall mean any acquisition or any series of related
acquisitions by a Credit Party or any of its Subsidiaries of the assets or a
majority of the Voting Stock of a Person that is not incorporated, formed or
organized in the United States, or any division, line of business or other
business unit of a Person that is not incorporated, formed or organized in the
United States.
"Foreign Subsidiary" shall mean any Subsidiary which is not a Domestic
Subsidiary.
"Funded Debt" shall mean, with respect to any Person, without duplication,
(a) all Indebtedness of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person incurred, issued or
assumed as the deferred purchase price of property or services purchased by such
Person (other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person and including, in any event,
earnout obligations, (e) the principal portion of all obligations of such Person
under Capital Leases, (f) the maximum face amount of all letters of credit
issued or bankers' acceptances facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (g) all preferred Capital Stock issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration prior to the date which is six months after the Maturity Date, (h)
the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product, (i) all Indebtedness of others of the type described in clauses (a)
through (h) hereof secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed,
provided that for purposes hereof the amount of such Indebtedness shall be
limited to the greater of (A) the amount of such Indebtedness as to which there
is recourse to or liability of such Person and (B) the fair market of the
property which is subject to the Lien, (j) all Guaranty Obligations of such
Person with respect to Indebtedness of another Person of the type described in
clauses (a) through (i) hereof, and (k) all Indebtedness of the type described
in clauses (a) through (i) hereof of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer in the
amount such Indebtedness is recourse to or is a liability of such Person;
provided, however, that Funded Debt shall not include Indebtedness among the
Credit Parties and their Subsidiaries to the extent such Indebtedness would be
eliminated on a consolidated basis.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States of America applied on a consistent basis, subject, however, in the
case of determination of compliance with the financial covenants set out in
Section 5.9, to the provisions of Section 1.3.
"Government Acts" shall have the meaning set forth in Section 2.19.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (iii) to lease or
purchase Property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof. The amount of
any Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
"Guarantor" shall have the meaning set forth in the first paragraph of this
Agreement.
"Guaranty" shall mean the guaranty of the Guarantors set forth in Article
X.
"Hedging Agreements" shall mean, with respect to any Person, any agreement
entered into to protect such Person against fluctuations in interest rates, or
currency or raw materials values, including, without limitation, any interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements.
"Hedging Agreement Provider" shall mean any Person that enters into a
Secured Hedging Agreement with a Credit Party or any of its Subsidiaries that is
permitted by Section 6.1(d) to the extent such Person is a Lender, an Affiliate
of a Lender or any other Person that was a Lender (or an Affiliate of a Lender)
at the time it entered into the Secured Hedging Agreement but has ceased to be a
Lender (or whose Affiliate has ceased to be a Lender) under the Credit
Agreement.
"Indebtedness" shall mean, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six
months of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay or
similar arrangements or under commodities agreements, (f) 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, or payable out of
the proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed provided that
for purposes hereof the amount of such Indebtedness shall be limited to the
greater of (A) the amount of such Indebtedness as to which there is recourse to
such Person and (B) the fair market value of the property which is subject to
the Lien, (g) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person, (h) the principal portion of all obligations of
such Person under Capital Leases plus any accrued interest thereon, (i) all net
obligations of such Person under Hedging Agreements, (j) the maximum amount of
all letters of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed or not cash collateralized), (k) all preferred Capital
Stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration, (l) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP, and (m) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer in the amount such Indebtedness
is recourse to such Person.
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insolvent" shall mean being in a condition of Insolvency.
"Intellectual Property" shall mean, collectively, all Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses.
"Interest Determination Date" shall have the meaning assigned thereto in
the definition of "Applicable Percentage".
"Interest Payment Date" shall mean (a) as to any Alternate Base Rate Loan
or Swingline Loan, the last Business Day of each March, June, September and
December during the term of this Agreement and on the applicable Maturity Date,
(b) as to any LIBOR Rate Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any LIBOR Rate Loan having an
Interest Period longer than three months, each day which is three months after
the first day of such Interest Period and the last day of such Interest Period
and (d) as to any Loan which is the subject of a mandatory prepayment required
pursuant to Section 2.5(b) hereof, the date of such prepayment.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan,
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such LIBOR Rate
Loan and ending one, two, three or six months thereafter, as selected
by the Borrower in the notice of borrowing or notice of conversion
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR Rate
Loan and ending one, two, three or six months as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that the foregoing provisions are subject to the
following:
(A) if any Interest Period pertaining to a LIBOR Rate Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
(B) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of the relevant calendar month;
(C) if the Borrower shall fail to give notice as provided
above, the Borrower shall be deemed to have been selected an
Alternate Base Rate Loan to replace the affected LIBOR Rate Loan;
(D) any Interest Period in respect of any Loan that would
otherwise extend beyond the applicable Maturity Date for such
Loan shall end on such Maturity Date;
(E) no more than five (5) LIBOR Rate Loans may be in effect
at any time; provided that, for purposes hereof, LIBOR Rate Loans
with different Interest Periods shall be considered as separate
LIBOR Rate Loans, even if they shall begin on the same date and
have the same duration, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute a
new LIBOR Rate Loan with a single Interest Period.
"Investment" shall mean all outlays of money made, directly or indirectly
in, to or from any Person, whether in cash or by acquisition of shares of
Capital Stock, property (for investment purposes), assets (for investment
purposes), indebtedness or other obligations or securities or by loan advance,
capital contribution or otherwise.
"Issuing Lender" shall mean Wachovia.
"Issuing Lender Fees" shall have the meaning set forth in Section 2.4(c).
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Schedule 5.10, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 5.10.
"Lender" shall have the meaning set forth in the first paragraph of this
Agreement.
"Letters of Credit" shall mean any letter of credit issued by the Issuing
Lender pursuant to the terms hereof, as such Letters of Credit may be amended,
modified, extended, renewed or replaced from time to time.
"Letter of Credit Facing Fee" shall have the meaning set forth in Section
2.4(b).
"Letter of Credit Fee" shall have the meaning set forth in Section 2.4(b).
"Leverage Ratio" shall mean, with respect to the Credit Parties and their
Subsidiaries on a consolidated basis for the twelve month period ending on the
last day of any fiscal quarter of the Borrower, the ratio of (a) Funded Debt of
the Credit Parties and their Subsidiaries on a consolidated basis on the last
day of such period to (b) Consolidated EBITDA for such period.
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 or any successor page as the London
interbank offered rate for deposits in 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. If for any reason such rate is
not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in 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 (rounded upwards, if necessary, to the
nearest 1/100 of 1%). If, for any reason, neither of such rates is available,
then "LIBOR" shall mean the rate per annum at which, as reasonably determined by
the Administrative Agent, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 A.M. London
time, two (2) Business Days prior to the commencement of the applicable Interest
Period for settlement in immediately available funds by leading banks in the
London interbank market for a period equal to the Interest Period selected.
"LIBOR Lending Office" shall mean, initially, the office of each Lender
designated as such Lender's LIBOR Lending Office shown on Schedule 9.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which the LIBOR Rate Loans of such Lender are to be made.
"LIBOR Market Index Rate" shall mean, for any day, the rate for one month
Dollar deposits as reported on Telerate page 3750 as of 11:00 a.m., London time,
on such day, or if such day is not a London business day, then the immediately
preceding London business day (or if not so reported, then as determined by the
Administrative Agent from another recognized source or interbank quotation).
"LIBOR Rate" shall mean a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" shall mean Loans the rate of interest applicable to which
is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"Loan" shall mean a Revolving Loan or a Swingline Loan as appropriate.
"LOC Commitment" shall mean the commitment of the Issuing Lender to issue
Letters of Credit and with respect to each Lender, the commitment of such Lender
to purchase participation interests in the Letters of Credit up to such Lender's
LOC Committed Amount as specified in Schedule 2.1(a), as such amount may be
reduced from time to time in accordance with the provisions hereof.
"LOC Commitment Percentage" shall mean, for each Lender, the percentage
identified as its LOC Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 9.6(c).
"LOC Committed Amount" shall mean, collectively, the aggregate amount of
all of the LOC Commitments of the Lenders to issue and participate in Letters of
Credit as referenced in Section 2.3 and, individually, the amount of each
Lender's LOC Commitment as specified in Schedule 2.1(a).
"LOC Documents" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or (ii) any collateral security for such obligations.
"LOC Obligations" shall mean, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"Mandatory Borrowing" shall have the meaning set forth in Section 2.2(e)
and Section 2.3(b)(ii), as the context may require.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Credit Parties and their Subsidiaries taken as a whole, (b) the ability of the
Borrower or any Guarantor to perform its obligations, when such obligations are
required to be performed, under this Agreement, any of the Notes or any other
Credit Document or (c) the validity or enforceability of this Agreement, any of
the Notes or any of the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Material Contract" shall mean any contract or other arrangement, whether
written or oral, to which any Credit Party or any of its Subsidiaries is a party
as to which the breach, nonperformance, cancellation or failure to renew by any
party thereto could reasonably be expected to have a Material Adverse Effect.
"Material Domestic Subsidiary" shall mean any Domestic Subsidiary that is
also a Material Subsidiary.
"Material Subsidiary" shall mean, as of any date of determination, any
Subsidiary of the Borrower that (a) is identified as a Material Subsidiary on
Schedule 3.12 attached hereto, which schedule may be modified from time to time
by the Borrower by written notice to the Administrative Agent, (b) together with
its Subsidiaries on a consolidated basis, during the twelve months preceding
such date of determination, accounts for (or to which may be or is attributed)
ten percent (10%) or more of the net income or assets (determined on a
consolidated basis) of the Borrower and its Subsidiaries or (c) is otherwise
necessary for the ongoing business operations of the Borrower and its
Subsidiaries taken as a whole.
"Materials of Environmental Concern" shall mean any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" shall mean the third anniversary of the Closing Date.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean the aggregate cash proceeds received by any
Credit Party or any Subsidiary in respect of any Asset Disposition or Debt
Issuance, net of (a) direct costs paid or payable as a result thereof
(including, without limitation, reasonable legal, accounting and investment
banking fees, and sales commissions) and (b) taxes paid or payable as a result
thereof; it being understood that "Net Cash Proceeds" shall include, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received by any Credit Party or any Subsidiary in respect of any
Asset Disposition or Debt Issuance.
"Non-Core Assets" shall mean (a) with respect to the Borrower and each
Material Subsidiary, all assets that are determined by the Borrower or the
Material Subsidiary, respectively, to be no longer necessary for the operation
of the Business in an aggregate amount not to exceed $10,000,000 in fair market
value unless otherwise approved by the Required Lenders and (b) any assets owned
by a Subsidiary of the Borrower that does not constitute a Material Subsidiary.
"Note" or "Notes" shall mean the Revolving Notes and/or the Swingline
Notes, collectively, separately or individually, as appropriate.
"Notice of Borrowing" shall mean the written notice of borrowing as
referenced and defined in Section 2.1(b)(i) or 2.3(b)(i), as appropriate.
"Notice of Conversion/Extension" shall mean the written notice of extension
or conversion as referenced and defined in Section 2.9
"Obligations" shall mean, collectively, Loans and LOC Obligations.
"Obligor" or "Obligors" shall mean the Borrower and the Guarantors.
"Operating Lease" shall mean, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Participant" shall have the meaning set forth in Section 9.6(b).
"Participation Interest" shall mean the purchase by a Lender of a
participation interest in Letters of Credit as provided in Section 2.2 and in
Swingline Loans as provided in Section 2.3.
"Patent License" shall mean all agreements, whether written or oral,
providing for the grant by or to an Obligor of any right to manufacture, use or
sell any invention covered by a Patent.
"Patents" shall mean (a) all letters patent of the United States or any
other country and all reissues and extensions thereof and (b) all applications
for letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean any acquisition or any series of related
acquisitions by a Credit Party or any of its Subsidiaries of substantially all
of the assets or a majority of the Voting Stock of a Person, or any division,
line of business or other business unit of a Person (such Person or such
division, line of business or other business unit of such Person referred to
herein as the "Target"), in which the assets (or Target's assets) are used or
are useful in the same or similar line of business as that permitted to be
engaged in by the Credit Parties and their Subsidiaries pursuant to Section 6.3
hereof, so long as (a) if before and immediately after giving effect to any such
acquisition the Leverage Ratio is greater than 1.0 to 1.0, the Credit Parties
shall demonstrate to the reasonable satisfaction of the Administrative Agent and
the Required Lenders that the Credit Parties, after giving effect to any such
acquisition (including such adjustments to the acquired company as are
consistent with the Borrower's past practices), will be in compliance on a Pro
Forma Basis with all of the terms and provisions of the financial covenants set
forth in Section 5.9, (b) if the Target shall be (or become as a result of such
acquisition) a Material Domestic Subsidiary, the Administrative Agent, on behalf
of the Lenders, shall have received (or shall receive in connection with the
closing of such acquisition), to the extent provided in the Security Documents,
a first priority perfected security interest in all Collateral (including,
without limitation, Capital Stock) acquired with respect to the Target and the
Target, if a Material Domestic Subsidiary (or if it becomes a Material Domestic
Subsidiary as a result of such acquisition), shall have executed a Joinder
Agreement promptly after the consummation of such acquisition in accordance with
the terms of Section 5.10, (c) if the acquisition is of Capital Stock, such
acquisition has been approved by the Board of Directors and/or shareholders of
the applicable Credit Party and the Target, (d) the Administrative Agent shall
have received a certificate from a Responsible Officer of the Borrower
certifying that, in the reasonable judgment of the Borrower and the Credit
Parties, due diligence with respect to the Target has been prudently conducted
under the circumstances applicable to such acquisition and (e) to the extent
there are any Loans outstanding hereunder (before or after giving effect to the
contemplated acquisition), total consideration (including, without limitation,
assumed Indebtedness, earnout payments (paid or accrued) and any other deferred
payment but excluding stock consideration) (i) paid by any Credit Party or any
of its Subsidiaries in connection with any acquisition (or series of related
acquisitions) shall not exceed the greater of (A) 10% of Consolidated Net Worth
and (B) $75,000,000, (ii) paid for all Permitted Acquisitions which (x) are
financed in part or in whole with the proceeds of any Loan hereunder or (y) are
consummated while any Loans hereunder are outstanding (before or after giving
effect to such acquisition) shall not exceed $200,000,000 in the aggregate
during the term of this Agreement for all such acquisitions, and (iii) paid for
all Foreign Acquisitions that are financed in whole or in part from with the
proceeds of any Loan hereunder shall not exceed $35,000,000 in the aggregate
during the term of this Agreement.
"Permitted Investments" shall mean:
(i) cash and Cash Equivalents;
(ii) amounts owing to the Borrower or any of its Subsidiaries or any
receivables and advances to suppliers, in each case if created, acquired or
made in accordance with past practices and payable or dischargeable in
accordance with customary trade terms;
(iii) Investments in and loans or advances by any Credit Party to any
other Credit Party;
(iv) Investment in and loans or advances by a Credit Party to any
Subsidiary of the Borrower (other than any Credit Party) in an aggregate
amount not to exceed $35,000,000 at any time outstanding;
(v) loans, prepaid commissions and advances to officers, directors,
employees and Affiliates in the ordinary course of business or otherwise
approved by the Borrower's board of directors; provided, that such loan,
prepaid commission or advance is not made in violation of any Requirement
of Law.
(vi) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers;
(vii) Investments, acquisitions or transactions permitted under
Section 6.4(b);
(viii) Permitted Acquisitions;
(ix) loans and advances by the Borrower or any of its Subsidiaries to
third parties in an aggregate amount not to exceed $10,000,000 at any time
outstanding so long as such Person is in the same or similar line of
business as the Borrower and its Subsidiaries;
(x) additional loan advances and/or Investments of a nature not
contemplated by the foregoing clauses hereof, provided that such loans,
advances and/or Investments made pursuant to this clause (x) shall not
exceed an aggregate amount of $15,000,000 at any time outstanding;
(xi) Investments in and loans or advances by any Foreign Subsidiary of
the Borrower in another Foreign Subsidiary of the Borrower;
(xii) Investments in and loans or advances by a Foreign Subsidiary of
the Borrower to a Credit Party, provided that such loans and advances are
fully subordinated to the Credit Party Obligations on terms reasonably
satisfactory to the Administrative Agent; and
(xiii) intercompany loans existing on the Closing Date and described
on Schedule 1.1-2.
"Permitted Liens" shall mean:
(i) Liens created by or otherwise existing, under or in
connection with this Agreement or the other Credit Documents in favor
of the Lenders;
(ii) Liens in favor of a Hedging Agreement Provider in connection
with any Secured Hedging Agreement, but only (A) to the extent such
Liens are on the same collateral as to which the Administrative Agent
on behalf of the Lenders also has a Lien and (B) if such Hedging
Agreement Provider and the Lenders shall share pari passu in the
collateral subject to such Liens;
(iii) Liens securing purchase money Indebtedness and Capital
Lease Obligations to the extent permitted under Section 6.1(a);
provided, that (A) any such Lien attaches to such property
concurrently with or within 30 days after the acquisition thereof and
(B) such Lien attaches solely to the property so acquired in such
transaction;
(iv) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the period of grace (not to exceed
60 days), if any, related thereto has not expired or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of
the any Credit Party or its Subsidiaries, as the case may be, in
conformity with GAAP;
(v) carriers', warehousemen's, landlord's, mechanics',
materialmen's, processor's, repairmen's or other like Liens arising in
the ordinary course of business which are not overdue for a period of
more than 60 days or which are being contested in good faith by
appropriate proceedings;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements incurred in the
ordinary course of business;
(vii) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in accordance with past practices or as approved by
the Board of Directors;
(viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement Lien shall be limited to all or a
part of the property which secured the Lien so extended, renewed or
replaced;
(ix) Liens existing on the Closing Date and set forth on Schedule
1.1-3; provided that (a) no such Lien shall at any time be extended to
cover property or assets other than the property or assets subject
thereto on the Closing Date and (b) the principal amount of the
Indebtedness secured by such Liens shall not be extended, renewed,
refunded or refinanced, except for Indebtedness of the type described
in Section 6.1(a) provided that no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(x) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect,
impairing the use of the encumbered Property for its intended
purposes; and
(xi) Liens on equipment arising from precautionary UCC financing
statements relating to the lease of such equipment to the extent
permitted by this Agreement.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" shall mean, at any particular time, any employee benefit plan which
is covered by Title IV of ERISA and in respect of which any Credit Party or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement dated as of the Closing
Date executed by the Credit Parties in favor of the Administrative Agent as
amended, modified, restated or supplemented from time to time.
"Prime Rate" shall have the meaning set forth in the definition of
Alternate Base Rate.
"Pro Forma Basis" shall mean, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the
twelve-month period ending as of the most recent month end preceding the date of
such transaction.
"Properties" shall have the meaning set forth in Section 3.10(a).
"Purchasing Lenders" shall have the meaning set forth in Section 9.6(c).
"Receivables" shall mean, as of any date of determination and without
duplication, the aggregate book value of all receivables as shown on the balance
sheets of the Borrower and its Subsidiaries (before deductions or allowances for
doubtful accounts).
"Recovery Event" shall mean the receipt by any Credit Party or any of its
Subsidiaries of any cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage, taking or similar event
with respect to any of their respective property or assets.
"Register" shall have the meaning set forth in Section 9.6(d).
"Reorganization" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
"Related Fund" shall mean, with respect to any Lender, any fund or trust or
entity that invests in commercial bank loans in the ordinary course of business
and is advised or managed by (i) such Lender, (ii) an Affiliate of such Lender,
(iii) any other Lender or any Affiliate thereof or (iv) the same investment
advisor as any Person described in clauses (i) through (iii).
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day notice
period is waived under PBGC Reg. ss.4043.
"Required Lenders" shall mean, at any time, Lenders holding in the
aggregate a majority of (i) the Commitments (and Participation Interests
therein) or (ii) if the Commitments have been terminated, the outstanding Loans
and Participation Interests (including the Participation Interests of the
Issuing Lender in any Letters of Credit and of the Swingline Lender in Swingline
Loans) provided, however, that if any Lender shall be a Defaulting Lender at
such time, then there shall be excluded from the determination of Required
Lenders, Obligations (including Participation Interests) owing to such
Defaulting Lender and such Defaulting Lender's Commitments, or after termination
of the Commitments, the principal balance of the Obligations owing to such
Defaulting Lender.
"Requirement of Law" shall mean each law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" shall mean, as to (a) the Borrower, any of the
President and the Chief Executive Officer or the Chief Financial Officer or (b)
any other Credit Party, any duly authorized officer thereof.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
any Credit Party or any of its Subsidiaries, now or hereafter outstanding, (b)
any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of any Credit Party or any of its Subsidiaries, now or hereafter
outstanding, (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
Capital Stock of any Credit Party or any of its Subsidiaries, now or hereafter
outstanding, or (d) any payment or prepayment of principal of, premium, if any,
or interest on, redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to, any Subordinated Indebtedness.
"Revolving Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding up to such Lender's Revolving Committed Amount.
"Revolving Commitment Percentage" shall mean, for each Lender, the
percentage identified as its Revolving Commitment Percentage on Schedule 2.1(a),
as such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
"Revolving Committed Amount" shall mean the amount of each Lender's
Revolving Commitment as specified on Schedule 2.1(a), as such amount may be
reduced from time to time in accordance with the provisions hereof.
"Revolving Loans" shall have the meaning set forth in Section 2.1.
"Revolving Note" or "Revolving Notes" shall mean the promissory notes of
the Borrower in favor of each of the Lenders evidencing the Revolving Loans
provided pursuant to Section 2.1(e), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc, or any successor to the rating agency business thereof.
"Scheduled Funded Debt Payments" shall mean, as of any date of
determination for the Credit Parties and their Subsidiaries, the sum of all
scheduled payments of principal on Funded Debt for the applied period ending on
the date of determination (including the principal component of payments due on
Capital Leases during the applicable period ending on the date of
determination).
"Secured Hedging Agreement" shall mean any Hedging Agreement between a
Credit Party and a Hedging Agreement Provider secured by Collateral, as amended,
modified, supplemented, extended or restated from time to time.
"Security Documents" shall mean the Pledge Agreement and such other
documents executed and delivered in connection with the attachment and
perfection of the Administrative Agent's security interests and liens arising
thereunder, including, without limitation, UCC financing statements.
"Single Employer Plan" shall mean any Plan which is not a Multiemployer
Plan.
"Subordinated Indebtedness" shall mean any Indebtedness incurred by any
Credit Party that is specifically subordinated in right of payment to the prior
payment of the Credit Party Obligations on terms reasonably acceptable to the
Administrative Agent and the Lenders.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding up
to the Swingline Committed Amount, and the commitment of the Lenders to purchase
participation interests in the Swingline Loans as provided in Section
2.3(b)(ii), as such amounts may be reduced from time to time in accordance with
the provisions hereof.
"Swingline Committed Amount" shall mean the amount of the Swingline
Lender's Swingline Commitment as specified in Section 2.3(a).
"Swingline Lender" shall mean Wachovia.
"Swingline Loan" or "Swingline Loans" shall have the meaning set forth in
Section 2.3(a).
"Swingline Note" shall mean the promissory note of the Borrower in favor of
the Swingline Lender evidencing the Swingline Loans provided pursuant to Section
2.3(d), as such promissory note may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Syndication Agent" shall have the meaning set forth in the first paragraph
of this Agreement and any successors in such capacity.
"Target" shall have the meaning set forth in the definition of
"Permitted Acquisition" in Section 1.1.
"Taxes" shall have the meaning set forth in Section 2.17.
"Trademark License" shall means any agreement, written or oral, providing
for the grant by or to an Obligor of any right to use any Trademark.
"Trademarks" shall mean (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade dress and
service marks, logos and other source or business identifiers, and the goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and (b) all renewals
thereof.
"Tranche" shall mean the collective reference to LIBOR Rate Loans whose
Interest Periods begin and end on the same day. A Tranche may sometimes be
referred to as a "LIBOR Tranche".
"Transfer Effective Date" shall have the meaning set forth in each
Commitment Transfer Supplement.
"2.17 Certificate" shall have the meaning set forth in Section 2.17(b).
"Type" shall mean, as to any Loan, its nature as an Alternate Base Rate
Loan or LIBOR Rate Loan, as the case may be.
"UCC" shall mean the Uniform Commercial Code as in effect from time to time
in the State of North Carolina.
"Voting Stock" shall mean, with respect to any Person, Capital Stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
may be or have been suspended by the happening of such a contingency.
"Wachovia" shall mean Wachovia Bank, National Association, a national
banking association.
"Works" shall mean all works which are subject to copyright protection
pursuant to Title 17 of the United States Code.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the Notes or other
Credit Documents or any certificate or other document made or delivered
pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
consolidated financial statements of the Borrower delivered to the Lenders;
provided that, if the Borrower notifies the Administrative Agent that it wishes
to amend any covenant in Section 5.9 to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend Section 5.9 for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender at
the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
Notwithstanding the above, the parties hereto acknowledge and agree that,
for purposes of all calculations made in determining compliance for any
applicable period with the financial covenants set forth in Section 5.9
(including without limitation for purposes of the definition of "Pro Forma
Basis" set forth in Section 1.1) and the other compliance tests included herein
(including, without limitation, the definition of "Material Subsidiary" in
Section 1.1), after consummation of any Permitted Acquisition, (A) income
statement items and other balance sheet items (whether positive or negative)
attributable to the Target acquired in such transaction (with adjustments as
described in the definition of "Permitted Acquisition" set forth in Section 1.1)
shall be included in such calculations to the extent relating to such applicable
period, and (B) Indebtedness of a Target which is retired in connection with a
Permitted Acquisition shall be excluded from such calculations and deemed to
have been retired as of the first day of such applicable period.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally, but not jointly, agrees to
make revolving credit loans ("Revolving Loans") to the Borrower from time to
time in an aggregate principal amount of up to ONE HUNDRED FIFTY Million DOLLARS
($150,000,000) (as such aggregate maximum amount may reduced from time to time
as provided in Section 2.5, the "Aggregate Revolving Committed Amount") for the
purposes hereinafter set forth; provided, however, that (i) with regard to each
Lender individually, the aggregate principal amount of such Lender's Revolving
Commitment Percentage of outstanding Revolving Loans plus such Lender's
Revolving Commitment Percentage of outstanding Swingline Loans plus such
Lender's LOC Commitment Percentage of LOC Obligations shall not exceed such
Lender's Revolving Committed Amount and (ii) with regard to the Lenders
collectively, the aggregate principal amount of the outstanding Revolving Loans
plus outstanding Swingline Loans plus LOC Obligations shall not exceed the
Aggregate Revolving Committed Amount. Revolving Loans may consist of Alternate
Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance with the provisions
hereof; provided, however, Revolving Loans made on the Closing Date or on any of
the three Business Days following the Closing Date may only consist of Alternate
Base Rate Loans. LIBOR Rate Loans shall be made by each Lender at its LIBOR
Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
borrowing by written notice (or telephone notice promptly confirmed in
writing which confirmation may be by fax) to the Administrative Agent not
later than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day
prior to the date of requested borrowing in the case of Alternate Base Rate
Loans, and on the third Business Day prior to the date of the requested
borrowing in the case of LIBOR Rate Loans. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Revolving Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, (D)
whether the borrowing shall be comprised of Alternate Base Rate Loans,
LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor. A form of Notice of Borrowing
(a "Notice of Borrowing") is attached as Schedule 2.1(b)(i). If the
Borrower shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a LIBOR Rate Loan, then such
notice shall be deemed to be a request for an Interest Period of one month,
or (II) the type of Revolving Loan requested, then such notice shall be
deemed to be a request for an Alternate Base Rate Loan hereunder. The
Administrative Agent shall give notice to each Lender promptly upon receipt
of each Notice of Borrowing, the contents thereof and each such Lender's
share thereof. All Revolving Loans made prior to the earlier of (i) the
completion of the syndication of the Commitments to financial institutions
which shall become Lenders hereunder or (ii) thirty days from the Closing
Date, shall bear interest at the Alternate Base Rate.
(ii) Minimum Amounts. Each Revolving Loan which is an Alternate Base
Rate Loan shall be in a minimum aggregate amount of $1,000,000 and in
integral multiples of $500,000 in excess thereof (or the remaining amount
of the Aggregate Revolving Committed Amount, if less). Each Revolving Loan
which is a LIBOR Rate Loan shall be in a minimum aggregate amount of
$1,000,000 and in integral multiples of $1,000,000 in excess thereof.
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Administrative
Agent for the account of the Borrower at the office of the Administrative
Agent specified in Section 9.2, or at such other office as the
Administrative Agent may designate in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the date specified in the applicable Notice of
Borrowing and in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due and
payable in full on the Maturity Date, unless accelerated sooner pursuant to
Section 7.2.
(d) Interest. Subject to the provisions of Section 2.8, Revolving Loans
shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as Revolving Loans
shall be comprised of Alternate Base Rate Loans, each such Alternate Base
Rate Loan shall bear interest at a per annum rate equal to the sum of the
Alternate Base Rate plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as Revolving Loans shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear
interest at a per annum rate equal to the sum of the LIBOR Rate plus the
Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each
Interest Payment Date.
(e) Revolving Notes. Each Lender's Revolving Committed Amount shall be
evidenced by a duly executed promissory note of the Borrower to such Lender in
substantially the form of Schedule 2.1(e) attached hereto.
Section 2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Issuing Lender
may reasonably require, during the Commitment Period the Issuing Lender shall
issue, and the Lenders shall participate in, Letters of Credit for the account
of the Borrower from time to time upon request in a form acceptable to the
Issuing Lender; provided, however, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed TWENTY MILLION DOLLARS ($20,000,000)
(the "LOC Committed Amount"), (ii) the aggregate principal amount of outstanding
Revolving Loans plus outstanding Swingline Loans plus LOC Obligations shall not
at any time exceed the Aggregate Revolving Committed, (iii) all Letters of
Credit shall be denominated in Dollars and (iv) Letters of Credit shall be
issued for lawful corporate purposes and may be issued as standby letters of
credit, including in connection with workers' compensation and other insurance
programs, and trade letters of credit. Except as otherwise expressly agreed upon
by all the Lenders with a Revolving Commitment, no Letter of Credit shall have
an original expiry date more than twelve (12) months from the date of issuance;
provided, however, so long as no Default or Event of Default has occurred and is
continuing and subject to the other terms and conditions to the issuance of
Letters of Credit hereunder, the expiry dates of Letters of Credit may be
extended annually or periodically from time to time on the request of the
Borrower or by operation of the terms of the applicable Letter of Credit to a
date not more than twelve (12) months from the date of extension; provided,
further, that no Letter of Credit, as originally issued or as extended, shall
have an expiry date extending beyond the Maturity Date. Each Letter of Credit
shall comply with the related LOC Documents. The issuance and expiry date of
each Letter of Credit shall be a Business Day. Any Letters of Credit issued
hereunder shall be in a minimum original face amount of $50,000 unless otherwise
agreed to by the Issuing Lender. Wachovia shall be the Issuing Lender on all
Letters of Credit issued on or after the Closing Date.
(b) Notice and Reports. The request for the issuance of a Letter of Credit
shall be submitted to the Issuing Lender at least five (5) Business Days prior
to the requested date of issuance. The Issuing Lender will promptly upon request
provide to the Administrative Agent for dissemination to the Lenders a detailed
report specifying the Letters of Credit which are then issued and outstanding
and any activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the account party,
the beneficiary, the face amount, expiry date as well as any payments or
expirations which may have occurred. The Issuing Lender will further provide to
the Administrative Agent promptly upon request copies of the Letters of Credit.
The Issuing Lender will provide to the Administrative Agent promptly upon
request a summary report of the nature and extent of LOC Obligations then
outstanding.
(c) Participations. Each Lender upon issuance of a Letter of Credit shall
be deemed to have purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit and the obligations arising thereunder
and any collateral relating thereto, in each case in an amount equal to its LOC
Commitment Percentage of the obligations under such Letter of Credit and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and be obligated to pay to the Issuing Lender therefor and discharge
when due, its LOC Commitment Percentage of the obligations arising under such
Letter of Credit. Without limiting the scope and nature of each Lender's
participation in any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any LOC Document, each such
Lender shall pay to the Issuing Lender its LOC Commitment Percentage of such
unreimbursed drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of subsection (d)
hereof. The obligation of each Lender to so reimburse the Issuing Lender shall
be absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Lender under any Letter of Credit, together
with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit,
the Issuing Lender will promptly notify the Borrower and the Administrative
Agent. The Borrower shall reimburse the Issuing Lender on the day of drawing
under any Letter of Credit (with the proceeds of a Revolving Loan obtained
hereunder or otherwise) in same day funds as provided herein or in the LOC
Documents. If the Borrower shall fail to reimburse the Issuing Lender as
provided herein, the unreimbursed amount of such drawing shall bear interest at
a per annum rate equal to the Alternate Base Rate plus the Applicable Percentage
for Revolving Loans that are Alternate Base Rate Loans plus two percent (2%).
Unless the Borrower shall immediately notify the Issuing Lender and the
Administrative Agent of its intent to otherwise reimburse the Issuing Lender,
the Borrower shall be deemed to have requested a Revolving Loan in the amount of
the drawing as provided in subsection (e) hereof, the proceeds of which will be
used to satisfy the reimbursement obligations. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of set-off, counterclaim or defense to
payment the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation any defense based on any
failure of the Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the other Lenders of the amount of any unreimbursed drawing and
each Lender shall promptly pay to the Administrative Agent for the account of
the Issuing Lender in Dollars and in immediately available funds, the amount of
such Lender's LOC Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M. (Charlotte,
North Carolina time), otherwise such payment shall be made at or before 12:00
Noon (Charlotte, North Carolina time) on the Business Day next succeeding the
day such notice is received. If such Lender does not pay such amount to the
Issuing Lender in full upon such request, such Lender shall, on demand, pay to
the Administrative Agent for the account of the Issuing Lender interest on the
unpaid amount during the period from the date of such drawing until such Lender
pays such amount to the Issuing Lender in full at a rate per annum equal to, if
paid within two (2) Business Days of the date of drawing, the Federal Funds
Effective Rate and thereafter at a rate equal to the Alternate Base Rate. Each
Lender's obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the Credit Party Obligations
hereunder and shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the Borrower shall
have requested, or been deemed to have requested, a Revolving Loan to reimburse
a drawing under a Letter of Credit, the Administrative Agent shall give notice
to the Lenders that a Revolving Loan has been requested or deemed requested in
connection with a drawing under a Letter of Credit, in which case a Revolving
Loan borrowing comprised entirely of Alternate Base Rate Loans (each such
borrowing, a "Mandatory Borrowing") shall be immediately made (without giving
effect to any termination of the Commitments pursuant to Section 7.2) pro rata
based on each Lender's respective Revolving Commitment Percentage (determined
before giving effect to any termination of the Commitments pursuant to Section
7.2) and the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each Lender hereby irrevocably
agrees to make such Revolving Loans immediately upon any such request or deemed
request on account of each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the same such date notwithstanding
(i) the amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 4.2 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure for any such request or deemed
request for Revolving Loan to be made by the time otherwise required in Section
2.1(b), (v) the date of such Mandatory Borrowing, or (vi) any reduction in the
Aggregate Revolving Committed Amount after any such Letter of Credit may have
been drawn upon; provided, however, that in the event any such Mandatory
Borrowing should be less than the minimum amount for borrowings of Revolving
Loans otherwise provided in Section 2.1(b)(ii), the Borrower shall pay to the
Administrative Agent for its own account an administrative fee of $500. In the
event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code), then each such Lender
hereby agrees that it shall forthwith fund (as of the date the Mandatory
Borrowing would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) its
Participation Interests in the LOC Obligations; provided, further, that in the
event any Lender shall fail to fund its Participation Interest on the day the
Mandatory Borrowing would otherwise have occurred, then the amount of such
Lender's unfunded Participation Interest therein shall bear interest payable by
such Lender to the Issuing Lender upon demand, at the rate equal to, if paid
within two (2) Business Days of such date, the Federal Funds Effective Rate, and
thereafter at a rate equal to the Alternate Base Rate.
(f) Modification, Extension. The issuance of any supplement, modification,
amendment, renewal, or extension to any Letter of Credit shall, for purposes
hereof, be treated in all respects the same as the issuance of a new Letter of
Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender shall have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
Section 2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period, subject to the
terms and conditions hereof, the Swingline Lender, in its individual capacity,
agrees to make certain revolving credit loans in Dollars to the Borrower (each a
"Swingline Loan" and, collectively, the "Swingline Loans") for the purposes
hereinafter set forth; provided, however, (i) the aggregate amount of Swingline
Loans outstanding at any time shall not exceed FIFTEEN MILLION DOLLARS
($15,000,000) (the "Swingline Committed Amount"), and (ii) the aggregate
principal amount of the outstanding Revolving Loans plus outstanding Swingline
Loans plus LOC Obligations shall not exceed the Aggregate Revolving Committed
Amount. Swingline Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. The Swingline Lender will
make Swingline Loans available to the Borrower on any Business Day upon
request made by the Borrower not later than 2:00 P.M. (Charlotte, North
Carolina time) on such Business Day. A notice of request for Swingline Loan
borrowing shall be made in the form of Schedule 2.1(b)(i) with appropriate
modifications. Swingline Loan borrowings hereunder shall be made in minimum
amounts of $100,000 and in integral amounts of $100,000 in excess thereof.
(ii) Repayment of Swingline Loans. Each Swingline Loan borrowing shall
be due and payable on the Maturity Date. The Swingline Lender may, at any
time, in its sole discretion, by written notice to the Borrower and the
Administrative Agent, demand repayment of its Swingline Loans. If Borrower
shall fail to repay such Swingline Loans on the date of such demand, then
the Borrower shall be deemed to have requested a Revolving Loan borrowing
comprised entirely of Alternate Base Rate Loans in the amount of such
Swingline Loans; provided, however, that, in the following circumstances,
any such demand shall also be deemed to have been given one Business Day
prior to each of (i) the Maturity Date, (ii) the occurrence of any Event of
Default described in Section 7.1(e), (iii) upon acceleration of the Credit
Party Obligations hereunder, whether on account of an Event of Default
described in Section 7.1(e) or any other Event of Default, and (iv) the
exercise of remedies in accordance with the provisions of Section 7.2
hereof (each such Revolving Loan borrowing made on account of any such
deemed request therefor as provided herein being hereinafter referred to as
"Mandatory Borrowing"). Each Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed request on account
of each Mandatory Borrowing in the amount and in the manner specified in
the preceding sentence and on the same such date notwithstanding (I) the
amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (II) whether
any conditions specified in Section 4.2 are then satisfied, (III) whether a
Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loans to be made by the time
otherwise required in Section 2.1(b)(i), (V) the date of such Mandatory
Borrowing, or (VI) any reduction in the Revolving Committed Amount or
termination of the Revolving Commitments immediately prior to such
Mandatory Borrowing or Contemporaneously therewith. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code), then each Lender
hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such Lender to share in
such Swingline Loans ratably based upon its respective Revolving Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the Swingline
Lender until the date as of which the respective participation is
purchased, and (B) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing Lender shall be required to
pay to the Swingline Lender interest on the principal amount of such
participation purchased for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the rate equal to, if paid
within two (2) Business Days of the date of the Mandatory Borrowing, the
Federal Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate.
(c) Interest on Swingline Loans. Subject to the provisions of Section 2.8,
Swingline Loans shall bear interest at the LIBOR Market Index Rate (as that rate
may change from day to day), plus the Applicable Percentage for LIBOR Rate
Loans.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in the original
amount of the Swingline Committed Amount and substantially in the form of
Schedule 2.3(d).
Section 2.4 Fees.
(a) Commitment Fee. In consideration of the Revolving Commitments, the
Borrower agrees to pay to the Administrative Agent for the ratable benefit of
the Lenders holding Revolving Commitments a commitment fee (the "Commitment
Fee") in an amount equal to the Applicable Percentage per annum on the average
daily unused amount, from the Closing Date through the first to occur of the
Maturity Date or termination of the Revolving Commitment, of the Aggregate
Revolving Committed Amount. For purposes of computation of the Commitment Fee,
LOC Obligations shall be considered usage of the Aggregate Revolving Committed
Amount but Swingline Loans shall not be considered usage of the Aggregate
Revolving Committed Amount. The Commitment Fee shall be payable quarterly in
arrears on the last Business Day of each calendar quarter.
(b) Letter of Credit Fees. In consideration of the LOC Commitments, the
Borrower agrees to pay to the Issuing Lender a fee (the "Letter of Credit Fee")
equal to the Applicable Percentage per annum on the average daily maximum amount
available to be drawn under each Letter of Credit from the date of issuance to
the date of expiration. In addition to such Letter of Credit Fee, the Issuing
Lender may charge, and retain for its own account without sharing by the other
Lenders, an additional facing fee (the "Letter of Credit Facing Fee") of
one-eighth of one percent (0.125%) per annum on the average daily maximum amount
available to be drawn under each such Letter of Credit issued by it. The Issuing
Lender shall promptly pay over to the Administrative Agent for the ratable
benefit of the Lenders (including the Issuing Lender) the Letter of Credit Fee.
The Letter of Credit Fee shall be payable quarterly in arrears on the last
Business Day of each calendar quarter.
(c) Issuing Lender Fees. In addition to the Letter of Credit Fees payable
pursuant to subsection (b) hereof, the Borrower shall pay to the Issuing Lender
for its own account without sharing by the other Lenders the reasonable and
customary charges from time to time of the Issuing Lender with respect to the
amendment, transfer, administration, cancellation and conversion of, and
drawings under, such Letters of Credit (collectively, the "Issuing Lender
Fees").
(d) Administrative Fee. The Borrower agrees to pay to the Administrative
Agent the annual administrative fee as described in the Fee Letter.
Section 2.5 Commitment Reductions.
(a) Voluntary Reductions. The Borrower shall have the right to terminate or
permanently reduce the unused portion of the Aggregate Revolving Committed
Amount at any time or from time to time upon not less than five (5) Business
Days' prior notice to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable) of each such termination or reduction, which
notice shall specify the effective date thereof and the amount of any such
reduction (which shall be in a minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof) and shall be irrevocable and
effective upon receipt by the Administrative Agent; provided that no such
reduction or termination shall be permitted if after giving effect thereto, and
to any prepayments of the Loans made on the effective date thereof, the sum of
the outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations would exceed the Aggregate Revolving Committed
Amount.
(b) Mandatory Reductions. On any date that the Revolving Loans are required
to be prepaid pursuant to the terms of Section 2.6(b) (ii), (iii) and (iv), the
Aggregate Revolving Committed Amount shall be automatically permanently reduced
by the amount of such required prepayment and/or reduction to the extent
required pursuant to Section 2.6(b)(v).
(c) Swingline Committed Amount. If the Aggregate Revolving Committed Amount
is reduced pursuant to Section 2.6(a) or (b) below the then Swingline Committed
Amount, the Swingline Committed Amount shall automatically be reduced by an
amount such that the Swingline Committed Amount equals the Aggregate Revolving
Committed Amount.
(d) Maturity Date. The Revolving Commitment, the Swingline Commitment and
the LOC Commitment shall automatically terminate on the Maturity Date.
Section 2.6 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right to prepay Loans
in whole or in part from time to time; provided, however, that each partial
prepayment of (i) a LIBOR Rate Loan shall be in a minimum aggregate amount of
$1,000,000 and integral multiples of $1,000,000 in excess thereof and (ii) a
Swingline Loan shall be in a minimum aggregate amount of $100,000 and integral
multiples of $10,000 in excess thereof (or, in each case, the full balance, if
less). The Borrower shall give three (3) Business Days' irrevocable notice in
the case of LIBOR Rate Loans and one Business Day's irrevocable notice in the
case of Alternate Base Rate Loans, to the Administrative Agent (which shall
notify the Lenders thereof as soon as practicable). Amounts prepaid under this
Section 2.6(a) shall be applied to the outstanding Loans as the Borrower may
elect; provided that each Lender shall receive its pro rata share (except with
respect to prepayments of Swingline Loans) of any such prepayment based on its
Revolving Commitment Percentage. All prepayments under this Section 2.6(a) shall
be subject to Section 2.16, but otherwise without premium or penalty. Interest
on the principal amount prepaid shall be payable on the next occurring Interest
Payment Date that would have occurred had such Loans not been prepaid or, at the
request of the Administrative Agent, interest on the principal amount prepaid
shall be payable on any date that a prepayment is made hereunder through the
date of prepayment. Amounts prepaid on the Revolving Loans and the Swingline
Loans may be reborrowed in accordance with the terms hereof.
(b) Mandatory Prepayments.
(i) Aggregate Revolving Committed Amount. If at any time after the
Closing Date, the aggregate principal amount of the outstanding Revolving
Loans plus outstanding Swingline Loans plus LOC Obligations shall exceed
the Aggregate Revolving Committed Amount, the Borrower shall promptly (and
in any event within one Business Day) prepay the Loans and cash
collateralize the LOC Obligations in an amount sufficient to eliminate such
excess (such prepayment to be applied as set forth in clause (v) below).
(ii) Asset Dispositions. Promptly following receipt of Net Cash
Proceeds in excess of $10,000,000 from one or more Asset Dispositions in
the aggregate during any twelve month period, the Borrower shall prepay the
Loans (and during the continuance of any Default or Event of Default) cash
collateralize the LOC Obligation in an aggregate amount equal to one
hundred percent (100%) of the Net Cash Proceeds received from such Asset
Disposition in excess of the $10,000,000 threshold referenced above (such
prepayment to be applied as set forth in clause (v) below).
(iii) Issuances. Promptly (and in any event within one Business Day)
upon receipt by any Credit Party of proceeds from any Debt Issuance, the
Borrower shall prepay the Loans (and during the continuance of any Default
or Event of Default cash collateralize the LOC Obligations) in an aggregate
amount equal to one hundred percent (100%) of the Net Cash Proceeds of such
Debt Issuance (such prepayment to be applied as set forth in clause (v)
below).
(iv) Recovery Event. To the extent of cash proceeds received by any
Credit Party in connection with a Recovery Event which are not applied in
accordance with Section 6.4(a)(iii), promptly (and in any event within one
Business Day) following the expiration of the period allowed for
reinvesting such cash proceeds pursuant to Section 6.4(a)(iii), the
Borrower shall prepay the Loans (and during the continuance of any Default
or Event of Default cash collateralize the LOC Obligations) aggregate
amount equal to one-hundred percent (100%) of such cash proceeds (such
prepayment to be applied as set forth in clause (v) below).
(v) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to this Section 2.6(b) shall be applied as follows: (A) with
respect to all amounts prepaid pursuant to Section 2.6(b)(i), (1) first, to
the Swingline Loans and (2) second, to the Revolving Loans and (B) with
respect to all amounts prepaid pursuant to Sections 2.6(b)(ii) through
(iv), (1) first, to the Swingline Loans, (2) second, to the Revolving Loans
(with a corresponding reduction in the Aggregate Revolving Committed
Amount; provided, however, with respect to subsection (ii) above, only that
portion of Asset Dispositions which exceeds five percent (5%) of
Consolidated Total Assets in any twelve month period shall result in a
corresponding reduction of the Aggregate Revolving Committed Amount) and
(3) third, (after all Revolving Loans have been repaid), to a cash
collateral account in respect of LOC Obligations. Within the parameters of
the applications set forth above, prepayments shall be applied first to
Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of
Interest Period maturities. Each Lender shall receive its pro rata share
(except with respect to prepayments of Swingline Loans) of any such
prepayment based on its Revolving Commitment Percentage. All prepayments
under this Section 2.6(b) shall be subject to Section 2.16 and be
accompanied by interest on the principal amount prepaid through the date of
prepayment.
(c) Hedging Obligations Unaffected. Any repayment or prepayment made
pursuant to this Section 2.6 shall not affect the Borrower's obligation to
continue to make payments under any Secured Hedging Agreement, which shall
remain in full force and effect notwithstanding such repayment or prepayment,
subject to the terms of such Secured Hedging Agreement.
Section 2.7 Lending Offices.
LIBOR Rate Loans shall be made by each Lender at its LIBOR Lending Office
and Alternate Base Rate Loans at its Domestic Lending Office.
Section 2.8 Default Rate and Payment Dates.
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall, at
the discretion of the Required Lenders, bear interest, payable on demand, at a
per annum rate 2% greater than the rate which would otherwise be applicable (or
if no rate is applicable, whether in respect of interest, fees or other amounts,
then the Alternate Base Rate plus the Applicable Percentage with respect to
Alternate Base Rate Loans plus 2% and such interest shall be payable on demand
by the Administrative Agent).
Section 2.9 Conversion Options.
(a) The Borrower may, in the case of Revolving Loans, elect from time to
time to convert Alternate Base Rate Loans to LIBOR Rate Loans, by giving the
Administrative Agent at least three Business Days' prior irrevocable written
notice of such election. A form of Notice of Conversion/Extension is attached as
Schedule 2.9. If the date upon which an Alternate Base Rate Loan is to be
converted to a LIBOR Rate Loan is not a Business Day, then such conversion shall
be made on the next succeeding Business Day and during the period from such last
day of an Interest Period to such succeeding Business Day such Loan shall bear
interest as if it were an Alternate Base Rate Loan. All or any part of
outstanding Alternate Base Rate Loans may be converted as provided herein,
provided that (i) no Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing and (ii) partial
conversions of Revolving Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in Section 2.9(a); provided, that no LIBOR Rate Loan
may be continued as such when any Default or Event of Default has occurred and
is continuing, in which case such Loan shall be automatically converted to an
Alternate Base Rate Loan at the end of the applicable Interest Period with
respect thereto. If the Borrower shall fail to give timely notice of an election
to continue a LIBOR Rate Loan, or the continuation of LIBOR Rate Loans is not
permitted hereunder, such LIBOR Rate Loans shall be automatically converted to
Alternate Base Rate Loans at the end of the applicable Interest Period with
respect thereto.
Section 2.10 Computation of Interest and Fees.
(a) Interest payable hereunder with respect to Alternate Base Rate Loans
based on the Prime Rate shall be calculated on the basis of a year of 365 days
(or 366 days, as applicable) for the actual days elapsed. All other fees,
interest and all other amounts payable hereunder shall be calculated on the
basis of a 360 day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a LIBOR Rate on the Business Day of the determination thereof.
Any change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate shall become effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the computations used by the Administrative Agent
in determining any interest rate.
Section 2.11 Pro Rata Treatment and Payments.
(a) Each borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective Revolving
Commitment Percentages of the Lenders. During an Event of Default, each payment
under this Credit Agreement or any Note shall be applied, (i) first, to any fees
then due and owing by the Borrower pursuant to Section 2.4, (ii) second, to
interest then due and owing hereunder and under the Notes, (iii) third, to
principal then due and owing hereunder and under the Notes and (iv) fourth, to
all other Credit Party Obligations then due and owing under the Credit
Documents. Each payment on account of any fees pursuant to Section 2.4 shall be
made pro rata in accordance with the respective amounts due and owing (except as
to the Letter of Credit Facing Fees retained by the Issuing Lender and the
Issuing Lender Fees). Each payment (other than prepayments) by the Borrower on
account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective amounts due and owing hereunder. Prepayments
made pursuant to Section 2.6 shall be applied in accordance with such section.
Each optional prepayment on account of principal of the Loans shall be applied
in accordance with Section 2.6(a) and each mandatory prepayment on account of
principal of the Loans shall be applied in accordance with Section 2.6(b). All
payments (including prepayments) to be made by the Borrower on account of
principal, interest and fees shall be made without defense, set-off or
counterclaim (except as provided in Section 2.17(b)) and shall be made to the
Administrative Agent for the account of the Lenders at the Administrative
Agent's office specified on Schedule 9.2 in Dollars and in immediately available
funds not later than 1:00 P.M. (Charlotte, North Carolina time) on the date when
due. The Administrative Agent shall distribute such payments to the Lenders
entitled thereto promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the LIBOR Rate Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a LIBOR Rate Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provision of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account of the Credit
Party Obligations or any other amounts outstanding under any of the Credit
Documents or in respect of the Collateral shall be paid over or delivered as
follows to the extent such order is permitted by applicable law:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable attorneys' fees) of the
Administrative Agent in connection with enforcing the rights of the Lenders
under the Credit Documents and any protective advances made by the
Administrative Agent with respect to the Collateral under or pursuant to
the terms of the Security Documents;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable attorneys' fees) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents or otherwise with respect to the Credit Party Obligations
owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest (including, without limitation,
accrued fees and interest arising under any Secured Hedging Agreement);
FIFTH, to the payment of the outstanding principal amount of the
Credit Party Obligations, and including with respect to any Secured Hedging
Agreement, any breakage, termination or other payments due under such
Secured Hedging Agreement and any interest accrued thereon;
SIXTH, to all other Credit Party Obligations and other obligations
which shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH" above;
and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied
in the numerical order provided until exhausted prior to application to the
next succeeding category; (ii) each of the Lenders and Hedging Agreement
Providers shall receive an amount equal to its pro rata share (based on the
proportion that the then outstanding Loans and LOC Obligations held by such
Lender or the outstanding obligations payable to such Hedging Agreement
Provider bears to the aggregate then outstanding Loans, LOC Obligations and
obligations payable under all Secured Hedging Agreements) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and
"SIXTH" above; and (iii) to the extent that any amounts available for
distribution pursuant to clause "FIFTH" above are attributable to the
issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Administrative Agent in a cash collateral account and
applied (A) first, to reimburse the Issuing Lender from time to time for
any drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FIFTH" and "SIXTH" above in the manner provided in
this Section 2.11(b). Notwithstanding the foregoing terms of this Section
2.11, only Collateral proceeds and payments under the Guaranty with respect
to Secured Hedging Agreements shall be applied to obligations under any
Secured Hedging Agreement.
Section 2.12 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the Administrative Agent shall have been notified in writing by
a Lender prior to the date a Loan is to be made by such Lender (which notice
shall be effective upon receipt) that such Lender does not intend to make the
proceeds of such Loan available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent, the Administrative Agent shall be
able to recover such corresponding amount from such Lender. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the Borrower, and
the Borrower shall promptly pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from the
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent at a per annum
rate equal to (i) from the Borrower at the applicable rate for the applicable
borrowing pursuant to the Notice of Borrowing and (ii) from a Lender at the
Federal Funds Effective Rate.
(b) Unless the Administrative Agent shall have been notified in writing by
the Borrower, prior to the date on which any payment is due from it hereunder
(which notice shall be effective upon receipt) that the Borrower does not intend
to make such payment, the Administrative Agent may assume that such Borrower has
made such payment when due, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to each Lender on
such payment date an amount equal to the portion of such assumed payment to
which such Lender is entitled hereunder, and if the Borrower has not in fact
made such payment to the Administrative Agent, such Lender shall, on demand,
repay to the Administrative Agent the amount made available to such Lender. If
such amount is repaid to the Administrative Agent on a date after the date such
amount was made available to such Lender, such Lender shall pay to the
Administrative Agent on demand interest on such amount in respect of each day
from the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is recovered by the Administrative Agent at a per
annum rate equal to the Federal Funds Effective Rate.
(c) A certificate of the Administrative Agent submitted to the Borrower or
any Lender with respect to any amount owing under this Section 2.12 shall be
conclusive in the absence of manifest error.
Section 2.13 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if (i) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining LIBOR for such Interest Period, or (ii) the Required Lenders shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the
cost to such Lenders of funding LIBOR Rate Loans that the Borrower has requested
be outstanding as a LIBOR Tranche during such Interest Period, the
Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two Business Days prior to the first day of such Interest Period. Unless the
Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such
LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans
shall be made as Alternate Base Rate Loans and any Loans that were requested to
be converted into or continued as LIBOR Rate Loans shall remain as or be
converted into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
Section 2.14 Illegality.
(a) Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
by the relevant Governmental Authority to any Lender shall make it unlawful for
such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Credit Agreement, then such Lender (an "Affected Lender"),
by written notice to the Borrower and to the Administrative Agent (which shall
include a certificate of such Lender stating with reasonable detail the basis
for such notice), may declare that LIBOR Rate Loans will not thereafter (for the
duration of such unlawfulness or impossibility) be made by such Lender
hereunder, whereupon any request for a LIBOR Rate Loan (in the affected currency
or currencies) shall, as to such Lender only, be deemed a request for a
Alternate Base Rate Loan (unless it should also be illegal for the Affected
Lender to provide an Alternate Base Rate Loan, in which case such Loan shall
bear interest at a commensurate rate reasonably determined by the Administrative
Agent and agreed to by the Affected Lender and, so long as no Event of Default
shall have occurred and be continuing, the Borrower), unless such declaration
shall be subsequently withdrawn.
(b) In the event any Lender shall exercise its rights above with respect to
any Loans, all payments and prepayments of principal which would otherwise have
been applied to repay the LIBOR Rate Loans that would have been made by such
Lender or the converted LIBOR Rate Loans of such Lender shall instead be applied
to repay the Alternate Base Rate Loans made by such Lender in lieu of, or
resulting from the conversion, of such LIBOR Rate Loans.
(c) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
Section 2.15 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit or any application relating thereto, any
LIBOR Rate Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for changes in the rate of tax on
the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or the Letters of Credit
or to reduce any amount receivable hereunder or under any Note, then, in
any such case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
additional cost or reduced amount receivable which such Lender reasonably
deems to be material as determined by such Lender with respect to its LIBOR
Rate Loans or Letters of Credit, provided, that the Borrower shall not be
required to pay to such Lender such additional amounts under this Section
2.15 for any amount incurred as a result of such additional costs or
reduction more than 90 days after the date that such Lender or the Issuing
Bank first became aware (or more than 90 days after a prudent lender or
issuing bank active in the lending market generally should have become
aware) of such additional costs or reduction and of such Lender's or the
Issuing Bank's intention to claim compensation therefore. A certificate as
to any additional amounts payable pursuant to this Section submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its Domestic
Lending Office or LIBOR Lending Office, as the case may be) to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
paragraph of this Section; provided, however, that such efforts shall not
cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender in its sole discretion to be
material.
(b) If any Lender shall have reasonably determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank
or Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender in its sole discretion to be material, then from time to
time, within fifteen (15) days after demand by such Lender, the Borrower shall
pay to such Lender such additional amount as shall be certified by such Lender
as being required to compensate it for such reduction, provided, that the
Borrower shall not be required to pay to such Lender such additional amounts
under this Section 2.15 for any amount incurred as a result of such reduction
more than 90 days after the date that such Lender or the Issuing Bank first
became aware (or more than 90 days after a prudent lender or issuing bank active
in the lending market generally should have become aware) of such reduction and
of such Lender's or the Issuing Bank's intention to claim compensation
therefore. Such a certificate as to any additional amounts payable under this
Section submitted by a Lender (which certificate shall include a description of
the basis for the computation), through the Administrative Agent, to the
Borrower shall be conclusive absent manifest error.
(c) The agreements in this Section 2.15 shall survive the termination of
this Agreement and payment of the Notes and all other amounts payable hereunder.
Section 2.16 Borrower's Indemnity of Lenders.
The Borrower hereby agrees to indemnify each Lender and to hold such Lender
harmless from any funding loss or expense which such Lender may sustain or incur
as a consequence of (a) default by the Borrower in payment of the principal
amount of or interest on any Loan by such Lender in accordance with the terms
hereof, (b) default by the Borrower in accepting a borrowing after the Borrower
has given a notice in accordance with the terms hereof, (c) default by the
Borrower in making any prepayment after the Borrower has given a notice in
accordance with the terms hereof, and/or (d) the making by the Borrower of a
prepayment of a LIBOR Rate Loan, or the conversion thereof, on a day which is
not the last day of the Interest Period with respect thereto, in each case
including, but not limited to, any such loss or expense arising from interest or
fees payable by such Lender to lenders of funds obtained by it in order to
maintain its LIBOR Rate Loans hereunder. A certificate as to any additional
amounts payable pursuant to this Section submitted by any Lender, through the
Administrative Agent, to the Borrower (which certificate must be delivered to
the Administrative Agent within thirty days following such default, prepayment
or conversion) shall be presumptively correct in the absence of manifest error.
The agreements in this Section shall survive termination of this Agreement and
payment of the Notes and all other amounts payable hereunder.
Section 2.17 Taxes.
(a) All payments made by the Borrower hereunder or under any Note will be,
except as provided in Section 2.17(b), made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any Governmental Authority or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding any
tax imposed on or measured by the net income or profits of a Lender pursuant to
the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of such Lender is
located or is or should be qualified to do business or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments
or other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction for
or on account of any Taxes, will not be less than the amount provided for herein
or in such Note. The Borrower will furnish to the Administrative Agent as soon
as practicable after the date the payment of any Taxes is due pursuant to
applicable law certified copies (to the extent reasonably available and required
by law) of tax receipts evidencing such payment by the Borrower. The Borrower
agrees to indemnify and hold harmless each Lender, and reimburse such Lender
upon its written request, for the amount of any Taxes so levied or imposed and
paid by such Lender.
(b) Each Lender that is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Closing Date, or in the case of a Lender
that is an assignee or transferee of an interest under this Agreement pursuant
to Section 9.6(d) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) if the Lender is a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN or W-8ECI (or successor
forms) certifying such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, either Internal Revenue Service Form W-8BEN or
W-8ECI as set forth in clause (i) above, or (x) a certificate substantially in
the form of Schedule 2.17 (any such certificate, a "2.17 Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying such Lender's entitlement to an
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition, each
Lender agrees that it will deliver upon the Borrower's request updated versions
of the foregoing, as applicable, whenever the previous certification has become
obsolete or inaccurate in any material respect, together with such other forms
as may be required in order to confirm or establish the entitlement of such
Lender to a continued exemption from or reduction in United States withholding
tax with respect to payments under this Agreement and any Note. Notwithstanding
anything to the contrary contained in Section 2.17(a), but subject to the
immediately succeeding sentence, (x) each Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold Taxes imposed by
the United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the account
of any Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the Borrower U.S. Internal Revenue
Service Forms that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated pursuant to Section
2.17(a) hereof to gross-up payments to be made to a Lender in respect of Taxes
imposed by the United States if (I) such Lender has not provided to the Borrower
the Internal Revenue Service Forms required to be provided to the Borrower
pursuant to this Section 2.17(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such
Forms do not establish a complete exemption from withholding of such Taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 2.17, the Borrower agrees to pay additional amounts
and to indemnify each Lender in the manner set forth in Section 2.17(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the
Closing Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its Domestic Lending Office or LIBOR Lending Office, as the
case may be) to avoid or to minimize any amounts which might otherwise be
payable pursuant to this Section; provided, however, that such efforts shall not
cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount pursuant to this Section
2.17 with respect to a Lender, such Lender shall use reasonable efforts to
obtain a refund of tax or credit against its tax liabilities on account of such
payment; provided that such Lender shall have no obligation to use such
reasonable efforts if either (i) it is in an excess foreign tax credit position
or (ii) it believes in good faith, in its sole discretion, that claiming a
refund or credit would cause adverse tax consequences to it. In the event that
such Lender receives such a refund or credit, such Lender shall pay to the
Borrower an amount that such Lender reasonably determines is equal to the net
tax benefit obtained by such Lender as a result of such payment by the Borrower.
In the event that no refund or credit is obtained with respect to the Borrower's
payments to such Lender pursuant to this Section 2.17, then such Lender shall
upon request provide a certification that such Lender has not received a refund
or credit for such payments. Nothing contained in this Section 2.17 shall
require a Lender to disclose or detail the basis of its calculation of the
amount of any tax benefit or any other amount or the basis of its determination
referred to in the proviso to the first sentence of this Section 2.17 to the
Borrower or any other party.
(e) The agreements in this Section 2.17 shall survive the termination of
this Agreement and the payment of the Notes and all other amounts payable
hereunder.
Section 2.18 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 2.2, the Borrower
hereby agrees to protect, indemnify, pay and save each Issuing Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees) that the
Issuing Lender may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit or (ii) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions, herein
called "Government Acts").
(b) As between the Borrower and the Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuing Lender shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to draw upon
a Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (vii) any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Issuing
Lender under any resulting liability to the Borrower. It is the intention of the
parties that this Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks involved in the issuance
of the Letters of Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts or omissions,
whether rightful or wrongful, of any Government Authority. The Issuing Lender
shall not, in any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 2.19 is intended to limit the reimbursement
obligation of the Borrower contained in Section 2.2(d) hereof. The obligations
of the Borrower under this Section 2.19 shall survive the termination of this
Agreement. No act or omissions of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the Issuing Lender to
enforce any right, power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained in this Section
2.19, the Borrower shall have no obligation to indemnify any Issuing Lender in
respect of any liability incurred by such Issuing Lender arising out of the
gross negligence, willful misconduct or bad faith of the Issuing Lender
(including action not taken by an Issuing Lender), as determined by a court of
competent jurisdiction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Extensions of Credit herein provided for, the Credit Parties hereby represent
and warrant to the Administrative Agent and to each Lender that:
Section 3.1 Financial Condition.
The Borrower has delivered to the Administrative Agent and the . Lenders
(a) balance sheets and the related statements of income and of cash flows of the
Borrower and its Subsidiaries for fiscal years ended December 31, 2000, 2001 and
2002 audited by a nationally recognized accounting firm, (b) unaudited balance
sheets and the related statements of income and of cash flows of the Borrower
and its Subsidiaries through September 30, 2003 and (c) three-year projections
of the Borrower and its Subsidiaries, all in form and substance reasonably
satisfactory to the Administrative Agent and certified by the chief financial
officer of the Borrower that (i) with respect to the audited and unaudited
financial statements, such financial statements are complete and correct and
fairly present the financial condition of the Borrower and its Subsidiaries as
at the dates indicated, subject, with respect to the unaudited financial
statements, to changes resulting from audit and normal year-end adjustments, and
(ii) with respect to the projections, they were prepared in good faith based
upon, to the best of such officer's knowledge, reasonable assumptions. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as disclosed therein).
Section 3.2 No Change.
Since December 31, 2002 (and after delivery of annual audited financial
statements in accordance with Section 5.1(a), since the date of the most
recently delivered annual audited financial statements) there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
Section 3.3 Corporate Existence; Compliance with Law.
Each of the Credit Parties (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, (b) has the requisite power and authority and the legal right to
own and operate all its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (c) is duly
qualified to conduct business and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to so qualify or be in good standing could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect and
(d) is in compliance with all Requirements of Law except to the extent that the
failure to so comply with any given Requirement of Law would not result in a
Material Adverse Effect.
Section 3.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has full power and authority and the legal right
to make, deliver and perform the Credit Documents to which it is party and has
taken all necessary limited liability company or corporate action to authorize
the execution, delivery and performance by it of the Credit Documents to which
it is party. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the borrowings hereunder or with the execution, delivery or
performance of any Credit Document by the Credit Parties (other than those which
have been obtained) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are necessary in
connection with the perfection of the Liens created by such Credit Documents).
Each Credit Document to which it is a party has been duly executed and delivered
on behalf of the Credit Parties party thereto. Each Credit Document to which it
is a party constitutes a legal, valid and binding obligation of the Credit
Parties party thereto, enforceable against such Credit Parties in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
Section 3.5 No Legal Bar; No Default.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the proceeds of the Loans will not violate
any material Requirement of Law and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any Requirement of Law other than the Liens arising under
or contemplated in connection with the Credit Documents.
Section 3.6 No Material Litigation.
No litigation, investigation, claim, criminal prosecution, civil
investigative demand, imposition of criminal or civil fines and penalties, or
any other proceeding of or before any arbitrator or Governmental Authority is
pending or, to the best knowledge of the Credit Parties, threatened by or
against (a) any Credit Party or any of its Subsidiaries or against any of its or
their respective properties or revenues or (b) with respect to the Credit
Documents or any Loan or any of the transactions contemplated hereby, in each
case which could reasonably be expected to have a Material Adverse Effect.
Section 3.7 Investment Company Act.
No Credit Party is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
Section 3.8 Margin Regulations.
No part of the proceeds of any Loan hereunder will be used directly or
indirectly for any purpose which violates, which would be inconsistent with or
which would require any Lender to make any filing in accordance with, the
provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. The Credit
Parties and their Subsidiaries taken as a group do not own "margin stock" except
as identified in the financial statements referred to in Section 3.1 and the
aggregate value of all "margin stock" owned by the Credit Parties and their
Subsidiaries taken as a group does not exceed 25% of the value of their assets.
Section 3.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency" (within
the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. The present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by an amount which, as determined
in accordance with GAAP, could reasonably be expected to have a Material Adverse
Effect. Neither any Credit Party nor any Commonly Controlled Entity is currently
subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan.
Section 3.10 Environmental Matters.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) The facilities and properties owned, leased or operated by the
Credit Parties or any of their Subsidiaries (the "Properties") do not
contain any Materials of Environmental Concern in amounts or concentrations
which constitute a violation of any Environmental Law.
(b) The Properties and all operations of the Credit Parties and/or
their Subsidiaries at the Properties are in compliance, and have in the
last five years been in compliance, in all respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Credit Parties or any of their
Subsidiaries (the "Business").
(c) No Credit Party has received any written or actual notice of
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the Business, nor does the
Credit Parties nor any of their Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could give rise to liability under any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Credit Parties, threatened, under any
Environmental Law to which any Credit Party or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of any Credit Party or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could give rise to liability under
Environmental Laws.
Section 3.11 Use of Proceeds.
The proceeds of the Extensions of Credit shall be used by the Borrower
solely to pay fees and expenses owing to the Lenders and the Administrative
Agent in connection with this Credit Agreement and (ii) provide for working
capital and other general corporate purposes of the Borrower and its
Subsidiaries including, but not limited to, Permitted Acquisitions and capital
expenditures.
Section 3.12 Subsidiaries.
Set forth on Schedule 3.12 is a complete and accurate list of all
Subsidiaries of the Credit Parties as of the Closing Date. Information on the
attached Schedule includes state of incorporation or organization; the number of
shares of each class of Capital Stock or other equity interests outstanding; the
number and percentage of outstanding shares of each class of Capital Stock; the
number and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and similar rights and an indication whether or not such
Subsidiary is a Material Subsidiary. The outstanding Capital Stock and other
equity interests of all such Subsidiaries are validly issued, fully paid and
non-assessable and are owned, free and clear of all Liens (other than those
arising under or contemplated in connection with the Credit Documents).
Section 3.13 Ownership.
Each Credit Party and its Subsidiaries is the owner of, and has good and
marketable title to or a valid leasehold interest in, all of its respective
assets, and none of such assets is subject to any Lien other than Permitted
Liens.
Section 3.14 Indebtedness.
Except as otherwise permitted under Section 6.1, the Credit Parties and
their Subsidiaries have no Indebtedness.
Section 3.15 Taxes.
Each of the Credit Parties and its Subsidiaries has filed, or caused to be
filed, all tax returns (federal, state, local and foreign) required to be filed
and paid (a) all amounts of taxes shown thereon to be due (including interest
and penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP.
Section 3.16 Intellectual Property.
Each of the Borrowers and its Subsidiaries owns or possesses rights to use
all licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, trade names, trade
name rights, copyrights and rights with respect to the foregoing which are
required to conduct its business except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect. No event has occurred
which, to the knowledge of the Borrower, permits, or after notice or lapse of
time or both would permit, the revocation or termination of any such rights,
and, to the knowledge of the Borrower, neither the Borrower nor any Subsidiary
is liable to any Person for infringement under Applicable Law with respect to
any such rights as a result of its business operations, except as could not
reasonably be expected to have a Material Adverse Effect.
Section 3.17 Solvency.
The fair saleable value of the Credit Parties' assets taken as a whole,
measured on a going concern basis, exceeds all probable liabilities of the
Credit Parties together as a whole, including those to be incurred pursuant to
this Credit Agreement. None of the Credit Parties (a) has unreasonably small
capital in relation to the business in which it is or proposes to be engaged or
(b) has incurred, or believes that it will incur after giving effect to the
transactions contemplated by this Credit Agreement, debts beyond its ability to
pay such debts as they become due.
Section 3.18 Investments.
All Investments of each of the Credit Parties and its Subsidiaries are
Permitted Investments.
Section 3.19 Location of Chief Executive Office.
Set forth on Schedule 3.19 is the chief executive office and principal
place of business of each of the Credit Parties and their Subsidiaries and the
State of incorporation or organization of each such Person, in each case as of
the Closing Date.
Section 3.20 No Burdensome Restrictions.
None of the Credit Parties or any of its Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
Section 3.21 Brokers' Fees.
None of the Credit Parties or any of its Subsidiaries has any obligation to
any Person in respect of any finder's, broker's, investment banking or other
similar fee in connection with any of the transactions contemplated under the
Credit Documents other than the closing and other fees payable pursuant to this
Credit Agreement.
Section 3.22 Labor Matters.
As of the Closing Date, there are no collective bargaining agreements or
Multiemployer Plans covering the employees of any of the Credit Parties or any
of its Subsidiaries as of the Closing Date, other than as set forth in Schedule
3.22 hereto, and none of the Credit Parties or any of its Subsidiaries (i) has
suffered any strikes, walkouts, work stoppages or other material labor
difficulty within the last five years, other than as set forth in Schedule 3.22
hereto or (ii) has knowledge of any potential or pending strike, walkout or work
stoppage. As of the Closing Date, other than as set forth on Schedule 3.22, no
unfair labor practice complaint is pending against any Credit Party or any of
its Subsidiaries or, to the best knowledge of the Credit Parties, threatened
against any Credit Party or any of its Subsidiaries.
Section 3.23 Security Documents.
The Security Documents create valid security interests in, and Liens on,
the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens that are prior to all
other Liens other than Permitted Liens.
Section 3.24 Accuracy and Completeness of Information.
All factual information heretofore, contemporaneously or hereafter
furnished by or on behalf of any Credit Party or any of its Subsidiaries to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any other Credit Document, or any transaction contemplated hereby
or thereby, is or will be true and accurate in all material respects and not
incomplete by omitting to state any material fact necessary to make such
information not misleading. There is no fact now known to any Credit Party or
any of its Subsidiaries which has, or could reasonably be expected to have, a
Material Adverse Effect which fact has not been set forth herein, in the
financial statements of the Borrower and its Subsidiaries furnished to the
Administrative Agent and/or the Lenders, or in any certificate, opinion or other
written statement made or furnished by any Credit Party to the Administrative
Agent and/or the Lenders.
Section 3.25 Material Contracts.
All of the Material Contracts are in full force and effect and no material
defaults of any Credit party or its Subsidiaries currently exist thereunder,
except where the failure of such contract to be in full force and effect or any
such defaults thereunder could not reasonably be expected to have a Material
Adverse Effect.
Section 3.26 Insurance.
The insurance coverage of the Credit Parties and their Subsidiaries as of
the Closing Date is outlined as to carrier, policy number, expiration date, type
and amount on Schedule 3.26 and such insurance coverage complies with the
requirements set forth in Section 5.5(b).
Section 3.27 Tax Shelter Regulations.
The Borrower does not intend to treat the Loans and the Letters of Credit
and related transactions as being a "reportable transaction" (within the meaning
of Treasury Regulation Section 1.6011-4). In the event the Borrower determines
to take any action inconsistent with such intention, it will promptly notify the
Administrative Agent thereof. If the Borrower so notifies the Administrative
Agent, the Borrower acknowledges that one or more of the Lenders may treat its
Loans, Letters of Credit and Participation Interests in Swingline Loans and
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such Treasury Regulation.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions to Closing Date and Initial Extensions of Credit.
This Agreement shall become effective upon, and the obligation of each
Lender to make the initial Revolving Loans and the Swingline Loans on the
Closing Date is subject to, the satisfaction of the following conditions
precedent:
(a) Execution of Agreement. The Administrative Agent shall have
received (i) counterparts of this Agreement, (ii) for the account of each
applicable Lender, a Revolving Note, (iii) for the account of the Swingline
Lender, the Swingline Note and (iv) counterparts of the Pledge Agreement
conforming to the requirements of this Agreement and executed by a duly
authorized officer of each party thereto, and in each case in form and
substance satisfactory to the Lenders.
(b) Authority Documents. The Administrative Agent shall have received
the following:
(i) Articles of Incorporation/Charter Documents. Copies of
the articles of incorporation or other charter documents, as
applicable, of each Credit Party certified to be true and
complete as of a recent date by the appropriate Governmental
Authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the board of
directors of each Credit Party approving and adopting the Credit
Documents, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party (pursuant to a
secretary's certificate in substantially the form of Schedule
4.1-1 attached hereto) as of the Closing Date to be true and
correct and in force and effect as of such date.
(iii) Bylaws/Operating Agreement. A copy of the bylaws or
comparable operating agreement of each Credit Party certified by
a secretary or assistant secretary of such Credit Party (pursuant
to a secretary's certificate in substantially the form of
Schedule 4.1-1 attached hereto) as of the Closing Date to be true
and correct and in force and effect as of such date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to each Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state of incorporation or organization and
each other state in which the failure to so qualify and be in
good standing could reasonably be expected to have a Material
Adverse Effect on the business or operations of the Credit
Parties and their Subsidiaries taken as a whole.
(v) Incumbency. An incumbency certificate of each Credit
Party certified by a secretary or assistant secretary (pursuant
to a secretary's certificate in substantially the form of
Schedule 4.1-1 attached hereto) to be true and correct as of the
Closing Date.
(c) Legal Opinions of Counsel. The Administrative Agent shall have
received opinions of legal counsel (including local counsel to the extent
required by the Administrative Agent) for the Credit Parties, dated the
Closing Date and addressed to the Administrative Agent and the Lenders,
which opinions shall be in form and substance reasonably acceptable to the
Administrative Agent.
(d) Filings and Other Actions Relating to the Collateral. The
Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent:
(i) duly authorized UCC financing statements for each appropriate
jurisdiction as is necessary, in the Administrative Agent's sole
discretion, to perfect the Administrative Agent's security interest in
the Collateral; and
(ii) duly executed consents as are necessary, in the
Administrative Agent's sole discretion, to perfect the Lenders'
security interest in the Collateral.
(e) Liability and Casualty Insurance. The Administrative Agent shall
have received copies of insurance policies or certificates of insurance
evidencing liability, casualty and business interruption insurance
reasonably satisfactory to the Administrative Agent.
(f) Fees. The Administrative Agent and the Lenders shall have received
all fees, if any, owing pursuant to the Fee Letter and Section 2.4, and the
Agent shall be reasonably satisfied with the aggregate amount of fees and
expenses payable in connection with the consummation of the transactions
contemplated in this Agreement.
(g) Litigation. There shall not exist any material pending litigation,
investigation, bankruptcy or insolvency, injunction, order or claim
affecting or relating to any Credit Party or any of its Subsidiaries, this
Agreement and the other Credit Documents, that has not been settled,
dismissed, vacated, discharged or terminated prior to the Closing Date.
(h) Solvency Certificate. The Administrative Agent shall have received
an officer's certificate prepared by the chief financial officer of the
Borrower as to the financial condition, solvency and related matters of the
Credit Parties, taken as a whole, in each case after giving effect the
initial borrowings under the Credit Documents, in substantially the form of
Schedule 4.1-2 attached hereto.
(i) Account Designation Letter. The Administrative Agent shall have
received the executed Account Designation Letter in the form of Schedule
1.1-1 hereto.
(j) Corporate Structure. The corporate structure of the Credit Parties
and their Subsidiaries shall be as described in Schedule 3.12, and, after
giving effect to the transactions contemplated in this Agreement, shall
otherwise be satisfactory to the Administrative Agent and the Lenders. The
Administrative Agent and the Lenders shall be satisfied with the management
of the Credit Parties and their Subsidiaries and with all legal, tax,
accounting, business and other matters relating to the transactions
contemplated by this Agreement and, after giving effect to such
transactions, the Credit Parties and their Subsidiaries.
(k) Consents. The Administrative Agent shall have received evidence
that all governmental, shareholder, board of director and material third
party consents and approvals necessary in connection with the financings
and other transactions contemplated hereby have been obtained and all
applicable waiting periods have expired without any action being taken by
any authority that could restrain, prevent or impose any material adverse
conditions on such transactions or that could seek or threaten any of such
transactions.
(l) Due Diligence. The Administrative Agent and the Arranger shall
have completed in form and scope reasonably satisfactory thereto their
business, legal, financial and environmental due diligence of the Credit
Parties and their Subsidiaries (including due diligence relating to
management, strategy, material customers and contracts and a review of
outstanding accounts receivables, contract processing procedures and
accounts receivables billing procedures).
(m) Compliance with Laws. The financings and other transactions
contemplated hereby shall be in compliance with all applicable laws and
regulations (including all applicable securities and banking laws, rules
and regulations).
(n) Bankruptcy. There shall be no bankruptcy or insolvency proceedings
with respect to the any Credit Party or any of its Subsidiaries.
(o) Material Adverse Effect. No material adverse change shall have
occurred since December 31, 2002 in the business, properties, operations,
or condition (financial or otherwise) of the Credit Parties and their
Subsidiaries taken as a whole and there shall not have occurred any
material disruption or material adverse change in the financial and capital
markets that impair the Arranger's ability to arrange a syndication of
Lenders for borrowings under this Agreement. There has been no event and
there exists no condition or state of facts that could reasonably be
expected to have a Material Adverse Effect.
(p) Financial Statements. The Administrative Agent shall have received
copies of the financial statements referred to in Section 3.1 hereof, each
in form and substance satisfactory to it.
(q) Termination of Existing Indebtedness. All existing Indebtedness
for borrowed money of the Credit Parties and their Subsidiaries (other than
the Indebtedness listed on Schedule 6.1(a)) shall have been repaid in full
and terminated and all Liens relating thereto shall have been terminated.
(r) Officer's Certificates. The Administrative Agent shall have
received a certificate executed by a Responsible Officer of the Borrower as
of the Closing Date stating that (i) no action, suit, investigation or
proceeding is pending or, to the knowledge of any Credit Party, threatened
in any court or before any arbitrator or governmental instrumentality that
purports to affect any Credit Party or any other transaction contemplated
by the Credit Documents, if such action, suit, investigation or proceeding
could reasonably be expected to have a Material Adverse Effect and (ii)
immediately after giving effect to this Credit Agreement (including the
initial Extensions of Credit hereunder), the other Credit Documents and all
the transactions contemplated therein to occur on such date, (A) no Default
or Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct in
all material respects, and (C) the Credit Parties are in compliance with
each of the financial covenants set forth in Section 5.9 on a pro forma
basis after giving effect to the transactions contemplated in this
Agreement, and demonstrating compliance with such financial covenants.
(s) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent
and its counsel.
Section 4.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent on the date of
making such Extension of Credit:
(a) Representations and Warranties. The representations and warranties
made by the Credit Parties herein, in the Security Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of
the date of such Extension of Credit as if made on and as of such date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect
to the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Agreement.
(c) Compliance with Commitments. Immediately after giving effect to
the making of any such Extension of Credit (and the application of the
proceeds thereof), (i) the sum of outstanding Revolving Loans plus
outstanding Swingline Loans plus LOC Obligations shall not exceed the
Aggregate Revolving Committed Amount, (ii) the LOC Obligations shall not
exceed the LOC Committed Amount and (iii) the Swingline Loans shall not
exceed the Swingline Committed Amount.
(d) Additional Conditions to Extensions of Credit. If such Extension
of Credit is made pursuant to Sections 2.1, 2.2 or 2.3, all conditions set
forth in such Section shall have been satisfied.
Each request for an Extension of Credit and each acceptance by the Borrower
of any such Extension of Credit shall be deemed to constitute a representation
and warranty by the Borrower as of the date of such Extension of Credit that the
applicable conditions in paragraphs (a) through (d) of this Section have been
satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Credit Party
Obligations, together with interest, Commitment Fees and all other amounts owing
to the Administrative Agent or any Lender hereunder, are paid in full, the
Credit Parties shall, and shall cause each of their Subsidiaries, to:
Section 5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, but in any
event within ninety-five (95) days after the end of each fiscal year of the
Borrower, a copy of the consolidated and consolidating balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated and consolidating statements of income
and retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such year, audited (with respect to the
consolidated statements only) by a firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Administrative Agent, in each case setting forth in comparative form
consolidated and consolidating figures for the preceding fiscal year,
reported on without a "going concern" or like qualification or exception,
or qualification indicating that the scope of the audit was inadequate to
permit such independent certified public accountants to certify such
financial statements without such qualification; and
(b) Quarterly Financial Statements. As soon as available and in any
event within fifty (50) days after the end of each of the fiscal quarters
of the Borrower except the last fiscal quarter of any given fiscal year, in
which case subsection (a) above shall apply, a company-prepared
consolidated and consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such period and related
company-prepared consolidating and consolidating statements of income and
retained earnings and of cash flows for the Borrower and its consolidated
Subsidiaries for such quarterly period and for the portion of the fiscal
year ending with such period, in each case setting forth in comparative
form consolidated and consolidating figures for the corresponding period or
periods of the preceding fiscal year (subject to normal recurring year-end
audit adjustments and the absence of footnotes) and including management
discussion and analysis of operating results.
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments and the absence of footnotes) and to be prepared in
reasonable detail and, in the case of the annual and quarterly financial
statements provided in accordance with subsections (a) and (b) above, in
accordance with GAAP applied consistently throughout the periods reflected
therein and further accompanied by a description of, and an estimation of the
effect on the financial statements on account of, a change, if any, in the
application of accounting principles as provided in Section 1.3.
Section 5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a) and 5.1(b) above, a certificate of a
Responsible Officer in substantially the form of Schedule 5.2(b) attached
hereto stating that, to the best of such Responsible Officer's knowledge,
during such period each of the Credit Parties observed or performed in all
material respects all of its covenants and other agreements, and satisfied
in all material respects every condition, contained in this Agreement to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall include the
calculations in reasonable detail required to indicate compliance with
Section 5.9 as of the last day of such period;
(c) promptly after the filing thereof, a copy of (i) each report or
other filing made by the Borrower or any or its Subsidiaries with the
Securities and Exchange Commission and required by the Securities and
Exchange Commission to be delivered to the shareholders of the Borrower or
any Subsidiary thereof, (ii) each report made by any of the Borrower or any
Subsidiary thereof to the Securities and Exchange Commission on Form 8-K
and (iii) each final registration statement of the Borrower or any
Subsidiary thereof filed with the Securities and Exchange Commission,
except in connection with pension plans and other employee benefit plans;
(d) within ninety (95) days after the end of each fiscal year of the
Borrower, a certificate containing information regarding the aggregate
amount of all Asset Dispositions, Debt Issuances, and Equity Issuances that
were made during the prior fiscal year and amounts received in connection
with any Recovery Event during the prior fiscal year;
(e) promptly upon receipt thereof, a copy of any other report or
"management letter" submitted by independent accountants to any Credit
Party or any of its Subsidiaries in connection with any annual, interim or
special audit of the books of such Person; and
(f) promptly, such additional financial and other information as the
Administrative Agent, on behalf of any Lender, may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 5.1 or this Section
5.2 (to the extent any such documents are included in materials otherwise filed
with the Securities and Exchange Commission) may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on which
the Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed in Section 9.2 or (ii) on
which such documents are delivered to the Administrative Agent for posting on
the Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative
Agent and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the compliance
certificates required by Section 5.2(b) to the Administrative Agent and each of
the Lenders. Except for such compliance certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.
Section 5.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its taxes (Federal, state, local and
any other taxes) and all its other obligations and liabilities of whatever
nature and any additional costs that are imposed as a result of any failure to
so pay, discharge or otherwise satisfy such obligations and liabilities, except
when the amount or validity of such obligations, liabilities and costs is
currently being contested in good faith by appropriate proceedings and reserves,
if applicable, in conformity with GAAP with respect thereto have been provided
on the books of the Borrower or its Subsidiaries, as the case may be, unless
such failure to pay or satisfy such obligations could not reasonably be expected
to have a Material Adverse Effect.
Section 5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by
it on the Closing Date and preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business; comply with all Requirements of Law applicable to it except to the
extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
Section 5.5 Maintenance of Property; Insurance.
(a) Keep all material property useful and necessary in its business in good
working order and condition (ordinary wear and tear and obsolescence excepted);
and
(b) Maintain with financially sound and reputable insurance companies
insurance on all its material property (including without limitation its
material tangible Collateral) in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative
Agent, upon written request, full information as to the insurance carried;
provided, however, that the Credit Parties and their Subsidiaries may maintain
self insurance plans to the extent companies of similar size and in similar
businesses do so.
Section 5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice by the
Administrative Agent or any Lender, the Administrative Agent or any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records (other than materials protected by the attorney-client
privilege and materials which the Borrower may not disclose without violation of
a confidentiality obligation binding upon it) at any reasonable time and as
often as may reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Credit Parties and their
Subsidiaries with officers and employees of the Credit Parties and their
Subsidiaries in each case at the Borrower's expense provided that, in the
absence of an Event of Default, Borrower shall not be responsible for the costs
and expenses of more than two visits and inspections per calendar year.
Section 5.7 Notices.
Give notice in writing to the Administrative Agent (which shall promptly
transmit such notice to each Lender) of:
(a) promptly, but in any event within two (2) Business Days after any
Credit Party knows or has reason to know thereof, the occurrence of any
Default or Event of Default;
(b) promptly, any default or event of default under any Contractual
Obligation of any Credit Party or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or involve a
monetary claim in excess of $5,000,000;
(c) promptly, any litigation, or any investigation or proceeding known
to a Credit Party, affecting any Credit Party or any of its Subsidiaries
which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect;
(d) as soon as possible and in any event within thirty (30) days after
any Credit Party knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC (other than a Permitted Lien) or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or any Credit Party or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan;
(e) promptly, after any Credit Party becomes involved in a pending
civil or criminal investigation, criminal action or civil proposed
debarment, exclusion or other sanctioning action related to any Federal or
state healthcare program; and
(f) promptly, any other development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto. In the case of any notice of a Default or Event of Default, the
Borrower shall specify that such notice is a Default or Event of Default notice
on the face thereof.
Section 5.8 Environmental Laws.
(a) Comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective employees, agents, officers and directors and
affiliates, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Credit Party or any of its
Subsidiaries or the Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence, bad faith, or willful
misconduct of the party seeking indemnification therefor. The agreements in this
paragraph shall survive repayment of the Notes and all other amounts payable
hereunder.
Section 5.9 Financial Covenants.
Commencing on the day immediately following the Closing Date, each of the
Credit Parties shall, and shall cause each of its Subsidiaries to, comply with
the following financial covenants:
(a) Leverage Ratio. The Leverage Ratio, as of the last day of each
fiscal quarter of the Borrower shall be less than or equal to 2.50 to 1.0.
(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as
of the last day of each fiscal quarter of the Borrower, shall be greater
than or equal to 1.50 to 1.0.
(c) Capitalization Ratio. The Capitalization Ratio, as of the last day
of each fiscal quarter of the Borrower, shall be less than or equal to 0.50
to 1.0.
(d) Asset Coverage Ratio. The Asset Coverage Ratio, as of the last day
of each fiscal quarter of the Borrower, shall be less than or equal to 0.85
to 1.0.
Section 5.10 Additional Subsidiary Guarantors.
The Credit Parties will cause each of their Material Domestic Subsidiaries,
whether newly formed, after acquired or otherwise existing, to promptly become a
Guarantor hereunder by way of execution of a Joinder Agreement in substantially
the form of Schedule 5.10 attached hereto. The guaranty obligations of any such
Additional Credit Party shall be secured by, among other things, the Collateral
of the Additional Credit Party and such Material Domestic Subsidiary shall
execute and deliver to the Administrative Agent such Security Documents, legal
opinions and related documents as the Administrative Agent may reasonably
request with respect to such Collateral.
Section 5.11 Compliance with Law.
To the extent failure to do so would have a Material Adverse Effect, each
Credit Party will, and will cause each of its Subsidiaries to (a) observe and
remain in compliance with all applicable Requirements of Law and maintain in
full force and effect all permits, authorizations, registrations and consents
from any Governmental Authority, in each case applicable to the conduct of its
business and (b) keep in full force and effect all licenses, certifications or
accreditations necessary for any Property to carry on its business.
Section 5.12 Pledged Assets.
Each Credit Party will cause (i) 100% of the issued and outstanding Capital
Stock of each Domestic Subsidiary and (ii) 65% (or such greater percentage which
would not result in material adverse tax consequences) of the issued and
outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of
each Foreign Subsidiary directly owned by the Borrower or any Domestic
Subsidiary of the Borrower to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent pursuant to the terms and
conditions of the Security Documents or such other security documents as the
Administrative Agent shall reasonably request. Each Credit Party shall, and
shall cause each of its Subsidiaries to, adhere to the covenants set forth in
the Security Documents.
Section 5.13 Further Assurances Regarding Collateral.
The Credit Parties shall within 30 days after the Closing Date (or such
later date as may be agreed to by the Administrative Agent) deliver to the
Administrative Agent the items set forth on Schedule 5.13.
ARTICLE VI
NEGATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Credit Party
Obligations, together with interest, Commitment Fee and all other amounts owing
to the Administrative Agent or any Lender hereunder, are paid in full that:
Section 6.1 Indebtedness.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries existing as of
the Closing Date as referenced in the financial statements referenced in
Section 3.1 and renewals, refinancings or extensions thereof in a principal
amount not in excess of that outstanding as of the date of such renewal,
refinancing or extension;
(b) Indebtedness arising or existing under this Agreement and the
other Credit Documents;
(c) Indebtedness of the Borrower and its Subsidiaries incurred after
the Closing Date consisting of Capital Leases or Indebtedness incurred to
provide all or a portion of the purchase price or cost of construction of
an asset provided that (i) such Indebtedness when incurred shall not exceed
the purchase price or cost of construction of such asset; (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing; and
(iii) the total amount of all such Indebtedness shall not exceed $5,000,000
at any time outstanding;
(d) unsecured intercompany Indebtedness among the Credit Parties,
provided that any such Indebtedness shall be (i) fully subordinated to the
Credit Party Obligations hereunder on terms reasonably satisfactory to the
Administrative Agent and (ii) evidenced by promissory notes which shall be
pledged to the Administrative Agent as Collateral for the Credit Party
Obligations;
(e) unsecured intercompany Indebtedness owing by a Foreign Subsidiary
of Borrower to another Foreign Subsidiary of Borrower;
(f) unsecured intercompany Indebtedness owing by a Foreign Subsidiary
of Borrower to a Credit Party provided that such Indebtedness constitutes a
Permitted Investment;
(g) Indebtedness and obligations owing under Secured Hedging
Agreements and other Hedging Agreements entered into in order to manage
existing or anticipated interest rate, exchange rate or commodity price
risks and not for speculative purposes;
(h) Indebtedness and obligations of Credit Parties owing under
documentary letters of credit for the purchase of goods or other
merchandise (but not under standby, direct pay or other letters of credit
except for the Letters of Credit hereunder) generally;
(i) Guaranty Obligations in respect of Indebtedness of a Credit Party
to the extent such Indebtedness is permitted to exist or be incurred
pursuant to this Section 6.1;
(j) unsecured Indebtedness of the Credit Parties in an aggregate
amount not to exceed $50,000,000 in the aggregate at any time outstanding;
and
(k) other unsecured Indebtedness of Subsidiaries of the Borrower that
are not Guarantors not to exceed $15,000,000 in the aggregate at any time
outstanding.
Section 6.2 Liens.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or hereafter acquired, except for Permitted
Liens.
Section 6.3 Nature of Business.
Each of the Credit Parties will not, nor will it permit any Subsidiary to
engage in any business other than (i) the same line of business as that engaged
in by the Borrower and its Subsidiaries on the Closing Date or (ii) a business
reasonably related thereto.
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell, transfer, lease
or otherwise dispose of its property or assets or agree to do so at a
future time, except that the following, without duplication, shall be
expressly permitted:
(i) the sale, transfer, lease or other disposition of inventory
and materials in the ordinary course of business;
(ii) the sale, transfer or other disposition of cash and Cash
Equivalents;
(iii) (A) the disposition of property or assets as a direct
result of a Recovery Event or (B) the sale, lease, transfer or other
disposition of machinery, parts and equipment no longer used or useful
in the conduct of the business of the Borrower or any of its
Subsidiaries, so long as the net proceeds therefrom are used to
replace such machinery, parts and equipment or to purchase or
otherwise acquire new assets or property within 180 days of receipt of
the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair
market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a
Credit Party other than the Borrower to another Credit Party;
(vi) the sale, lease or transfer of property or assets not to
exceed five percent (5%) of Consolidated Total Assets in the aggregate
in any fiscal year, provided that in connection with any transfer,
sale or lease of assets in exchange for other assets, including,
without limitation, any transfer of property relinquished in a
like-kind exchange, the fair market value of the assets so
transferred, sold, leased or exchanged shall not count toward the
aforementioned percentage if the fair market value of the assets
received in such transfer, sale or exchange is equal to or greater
than the fair market value of the disposed assets and to the extent
the fair market value of the assets received is less than the fair
market value of the disposed assets then the difference in such values
only shall be counted toward the percentage set forth above;
(vii) the sale, lease or transfer of property or assets from a
Foreign Subsidiary of the Borrower to another Foreign Subsidiary of
the Borrower, or from a Foreign Subsidiary of the Borrower to a Credit
Party; and
(viii) the dissolution, liquidation or wind up of affairs of any
Subsidiary as a result of the consummation of a merger or
consolidation to the extent expressly permitted under Section 6.4(b);
provided, that, in the case of clauses (i), (ii), (iii) and (vi) above, at
least 75% of the consideration received therefor by the Borrower or any other
Credit Party is in the form of cash or Cash Equivalents, provided that in
connection with any transfer, sale or lease of assets in exchange for other
assets, including, without limitation, any transfer of property relinquished in
a like-kind exchange, the fair market value of any asset received in such
transfer, sale or exchange shall not count toward the aforementioned percentage,
if the fair market value of the assets received in such transfer, sale or
exchange is equal to or greater than the fair market value of the disposed
assets and to the extent the fair market value of the assets received is less
than the fair market value of the disposed assets then the difference in such
values only shall be counted toward the requirement set forth above; provided,
further, that in the case of clause (vi) above, the Borrower may exceed the
limitation provided therein to the extent that assets are sold for cash and the
Net Cash Proceeds received therefrom are applied to permanently reduce the
Revolving Commitments pursuant to Section 2.6(b); or
(b) (i) purchase, lease or otherwise acquire (in a single transaction
or a series of related transactions) the property or assets of any Person
(other than purchases or other acquisitions of inventory, leases,
materials, property and equipment in the ordinary course of business,
except as otherwise limited or prohibited herein and assets acquired in
exchange for other assets so long as the related disposition of such assets
was permitted under Section 6.4(a)) or (ii) enter into any transaction of
merger or consolidation, except for (A) investments or acquisitions
permitted pursuant to Section 6.5, (B) the merger or consolidation of a
Credit Party with and into another Credit Party; provided that if the
Borrower is a party thereto, the Borrower will be the surviving
corporation; (C) the merger or consolidation of a Target with or into a
Credit Party provided that (x) if such Credit Party is the Borrower, the
Borrower shall be the surviving entity of such merger or consolidation, and
(y) if such Credit Party is not the Borrower, such Credit Party shall be
the surviving entity of such merger or consolidation or the Target shall
become a Credit Party upon the consummation of such merger or consolidation
in accordance with the terms of this Agreement, and (D) the merger or
consolidation of a Foreign Subsidiary of the Borrower with another Foreign
Subsidiary of the Borrower, with a Target that will become a Foreign
Subsidiary of the Borrower upon the consummation of such merger or
consolidation or with a Credit Party, provided that in the case of a merger
or consolidation with a Credit Party, the Credit Party is the survivor of
such merger.
Section 6.5 Advances, Investments and Loans.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
make any Investment except for Permitted Investments.
Section 6.6 Transactions with Affiliates.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm's-length transaction with a Person other than
an officer, director, shareholder or Affiliate.
Section 6.7 Ownership of Subsidiaries; Restrictions.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
create, form or acquire any Subsidiaries, except for Domestic Subsidiaries which
are joined as Additional Credit Parties in accordance with the terms hereof,
Foreign Subsidiaries existing as of the Closing Date and Foreign Subsidiaries
acquired, formed or created in connection with a Permitted Acquisition. The
Borrower will not sell, transfer, pledge or otherwise dispose of any Capital
Stock or other equity interests in any of its Subsidiaries, nor will it permit
any of its Subsidiaries to issue, sell, transfer, pledge or otherwise dispose of
any of their Capital Stock or other equity interests, except in a transaction
permitted by Section 6.4.
Section 6.8 Fiscal Year; Organizational Documents; Material Contracts;
Subordinated Indebtedness; Accounting Policies.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
change its fiscal year. Each of the Credit Parties will not, nor will it permit
any Subsidiary to, amend, modify or change its articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document) without the prior written consent of the Required Lenders if
such amendment, modification or change could reasonably be expected to adversely
affect the Lenders or the Administrative Agent, or such amendment, modification
or change adversely affects the Borrower's ability to repay the Credit Party
Obligations or any Guarantor's ability to perform its Guaranty hereunder. Each
of the Credit Parties will not, nor will it permit any Subsidiary to, without
the prior written consent of the Administrative Agent, amend, modify, cancel or
terminate or fail to renew or extend or permit the amendment, modification,
cancellation or termination of any of the Material Contracts, except in the
event that such amendments, modifications, cancellations or terminations could
not reasonably be expected to have a Material Adverse Effect. The Borrower will
not, without the prior written consent of the Required Lenders, amend, modify,
waive or extend or permit the amendment, modification, waiver or extension of
any term of the Subordinated Indebtedness or of any documentation governing or
evidencing the such Subordinated Indebtedness in a manner that is adverse to the
interests of the Lenders or the issuer of such Subordinated Indebtedness. Each
of the Credit Parties will not, nor will it permit any Subsidiary to, without
the prior written consent of the Administrative Agent, change its accounting
policies, except as required in order to comply with GAAP.
Section 6.9 Limitation on Restricted Actions.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such Person to
(a) pay dividends or make any other distributions to any Credit Party on its
Capital Stock or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation owed to
any Credit Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit Party, or (e)
act as a Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Agreement
and the other Credit Documents, (ii) applicable law, (iii) any document or
instrument governing Indebtedness incurred pursuant to Section 6.1(c); provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, or (iv) any Permitted Lien or
any document or instrument governing any Permitted Lien; provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien.
Section 6.10 Restricted Payments.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person, (b) to make dividends or other
distributions payable to any Credit Party (directly or indirectly through
Subsidiaries) (c) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom and so long as, after giving effect to such
payment on a pro forma basis, the Credit Parties would be in compliance with the
financial covenants set forth in Section 5.9, to make dividends, redemptions
and/or repurchases in respect of the Borrower's common stock, options and/or
warrants in an aggregate amount not to exceed $100,000,000 during the term of
this Agreement, and (d) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, the Borrower and its Subsidiaries
may make scheduled payments with respect to any earnout obligation and regularly
scheduled payments of interest in respect of any Subordinated Indebtedness.
Section 6.11 Sale Leasebacks.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
directly or indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any lease, whether an operating lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (a) which any Credit Party or any Subsidiary has sold or
transferred or is to sell or transfer to a Person which is not another Credit
Party or Subsidiary or (b) which any Credit Party or any Subsidiary intends to
use for substantially the same purpose as any other property which has been sold
or is to be sold or transferred by such Credit Party or such Subsidiary to
another Person which is not another Credit Party or Subsidiary in connection
with such lease.
Section 6.12 No Further Negative Pledges.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
enter into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation,
except (a) pursuant to this Agreement and the other Credit Documents, (b)
pursuant to any document or instrument governing Indebtedness incurred pursuant
to Section 6.1(c), provided that any such restriction contained therein relates
only to the asset or assets constructed or acquired in connection therewith and
(c) in connection with any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) The Borrower shall fail to pay any principal on any Loan when due
in accordance with the terms thereof or hereof; or the Borrower shall fail
to reimburse the Issuing Lender for any LOC Obligations when due in
accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan or any fee or other amount payable hereunder when due
in accordance with the terms thereof or hereof and such failure shall
continue unremedied for three (3) Business Days (or any Guarantor shall
fail to pay on the Guaranty in respect of any of the foregoing or in
respect of any other Guaranty Obligations thereunder within the aforesaid
period of time); or
(b) Any representation or warranty made or deemed made herein, in the
Security Documents or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement
furnished at any time under or in connection with this Agreement shall
prove to have been incorrect, false or misleading in any material respect
on or as of the date made or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or observe
any term, covenant or agreement applicable to it contained in Section 5.4,
Section 5.7(a), Section 5.9 or Article VI hereof; or (ii) any Credit Party
shall fail to comply with any other covenant, contained in this Credit
Agreement or the other Credit Documents or any other agreement, document or
instrument among any Credit Party, the Administrative Agent and the Lenders
or executed by any Credit Party in favor of the Administrative Agent or the
Lenders (other than as described in Sections 7.1(a), 7.1(b) or 7.1(c)(i)
above), and in the event such breach or failure to comply is capable of
cure, is not cured within thirty (30) days of its occurrence; or
(d) Any Credit Party or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any Indebtedness (other than the
Notes) in a principal amount outstanding of at least $10,000,000 in the
aggregate for the Credit Parties and their Subsidiaries beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created; (ii) default in the
observance or performance of any other agreement or condition relating to
any Indebtedness in a principal amount outstanding of at least $10,000,000
in the aggregate for the Credit Parties and their Subsidiaries or contained
in any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity; or (iii) breach or
default any Secured Hedging Agreement; or
(e) The Borrower or any of the Borrower's Material Subsidiaries, or
each of any two or more Subsidiaries that do not constitute Material
Subsidiaries but, if consolidated, would constitute a Material Subsidiary,
(i) shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or
any Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) shall be subject to the commencement of any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) shall be subject to the
commencement of any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) shall be subject to any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clauses (i), (ii), or (iii) above; or (v) shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(f) One or more judgments or decrees shall be entered against the any
Credit Party or any of its Subsidiaries involving in the aggregate a
liability (to the extent not paid when due or covered by insurance) of
$10,000,000 or more and all such judgments or decrees shall not have been
paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall
arise on the assets of any Credit Party or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a Trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any
Credit Party or any of its Subsidiaries or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely to,
incur any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, any Multiemployer Plan or (vi) any other similar
event or condition shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could have a Material
Adverse Effect; or
(h) There shall occur a Change of Control; or
(i) The Guaranty or any material provision thereof shall cease to be,
or is claimed by the Borrower or any of its Subsidiaries to not be, in full
force and effect or any Guarantor or any Person acting by or on behalf of
any Guarantor shall deny or disaffirm any Guarantor's obligations under the
Guaranty; or
(j) Any other Credit Document shall fail to be, or is claimed by the
Borrower or any of its Subsidiaries to not be, in any material respect, in
full force and effect or to give the Administrative Agent and/or the
Lenders the security interests, liens, rights, powers and privileges
purported to be created thereby (except as such documents may be terminated
or no longer in force and effect in accordance with the terms thereof,
other than those indemnities and provisions which by their terms shall
survive).
(k) Any default (which is not waived or cured within the applicable
period of grace) or event of default shall occur under any of document
governing or evidencing any Subordinated Indebtedness or the subordination
provisions contained therein shall cease to be in full force and effect or
to give the Lenders the rights, powers and privileges purported to be
created thereby.
Section 7.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of Default,
then, and in any such event, (a) if such event is an Event of Default specified
in Section 7.1(e) above, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts
under the Credit Documents (including without limitation the maximum amount of
all contingent liabilities under Letters of Credit) shall immediately become due
and payable, and (b) if such event is any other Event of Default, any or all of
the following actions may be taken: (i) with the written consent of the Required
Lenders, the Administrative Agent may, or upon the written request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; (ii) the Administrative Agent may, or upon the
written request of the Required Lenders, the Administrative Agent shall, by
notice of default to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith and direct the Borrower to pay to the Administrative
Agent cash collateral as security for the LOC Obligations for subsequent
drawings under then outstanding Letters of Credit in an amount equal to the
maximum amount of which may be drawn under Letters of Credit then outstanding,
whereupon the same shall immediately become due and payable; (iii) exercise any
rights or remedies of the Administrative Agent or the Lenders under this
Agreement or any other Credit Document, including, without limitation, any
rights or remedies with respect to the Collateral and (iv) exercise any rights
or remedies available to the Administrative Agent or Lenders under applicable
law.
ARTICLE VIII
THE AGENT
Section 8.1 Appointment.
Each Lender hereby irrevocably designates and appoints Wachovia Bank,
National Association as the Administrative Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes Wachovia Bank, National
Association, as the Administrative Agent for such Lender, to take such action on
its behalf under the provisions of this Agreement and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
Section 8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this Agreement
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care. Without limiting the
foregoing, the Administrative Agent may appoint one of its affiliates as its
agent to perform the functions of the Administrative Agent hereunder relating to
the advancing of funds to the Borrower and distribution of funds to the Lenders
and to perform such other related functions of the Administrative Agent
hereunder as are reasonably incidental to such functions.
Section 8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Credit Documents or for any failure of the Borrower
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance by the Borrower of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of the Borrower.
Section 8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent and (b)
the Administrative Agent shall have received the written agreement of such
assignee to be bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form satisfactory to the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
any of the Credit Documents in accordance with a request of the Required Lenders
or all of the Lenders, as may be required under this Agreement, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
Section 8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the extent that
this Credit Agreement expressly requires that such action be taken, or not
taken, only with the consent or upon the authorization of the Required Lenders,
or all of the Lenders, as the case may be.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representation or warranty to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent 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 appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
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
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Lenders Indemnification of Agent.
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this Section, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the Agent's gross negligence or willful misconduct,
as determined by a court of competent jurisdiction. The agreements in this
Section 8.7 shall survive the termination of this Agreement and payment of the
Notes and all other amounts payable hereunder.
Section 8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
Section 8.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30 days'
prior notice to the Borrower and the Lenders. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the Notes, then the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall be approved by the Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Notes. After any retiring Agent's resignation as Administrative Agent, the
provisions of this Section 8.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
Section 8.10 Other Agents.
Each of the Syndication Agent and any Co-Documentation Agent shall have no
duties or obligations, and thus no liabilities, in their capacity as a
Syndication Agent and Documentation, respectively, under this Agreement and the
other Credit Documents.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments, Waivers and Release of Collateral.
Neither this Agreement, nor any of the other Credit Documents, nor any
terms hereof or thereof may be amended, supplemented, waived or modified except
in accordance with the provisions of this Section. The Required Lenders may, or,
with the written consent of the Required Lenders, the Administrative Agent may,
from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit Documents
or changing in any manner the rights of the Lenders or of the Borrower hereunder
or thereunder or (b) waive, on such terms and conditions as the Required Lenders
may specify in such instrument, any of the requirements of this Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, waiver,
supplement, modification or release shall:
(i) reduce the amount or extend the scheduled date of maturity of any
Loan or Note or any installment thereon, or reduce the stated rate of any
interest or fee payable hereunder (except in connection with a waiver of
interest at the increased post-default rate) or extend the scheduled date
of any payment thereof or increase the amount or extend the expiration date
of any Lender's Commitment, in each case without the written consent of
each Lender directly affected thereby; or
(ii) amend, modify or waive any provision of this Section 9.1 or
reduce the percentage specified in the definition of Required Lenders,
without the written consent of all the Lenders; or
(iii) amend, modify or waive any provision of Article VIII without the
written consent of the then Administrative Agent; or
(iv) release all or substantially all of the Guarantors from their
obligations under the Guaranty, without the written consent of all of the
Lenders; or
(v) release all or substantially all of the Collateral, without the
written consent of all of the Lenders; or
(vi) amend, modify or waive any provision of the Credit Documents
requiring consent, approval or request of the Required Lenders or all
Lenders, without the written consent of all of the Required Lenders or
Lenders as appropriate; or
(vii) amend, modify or waive any provision of Section 2.11(b) in a
manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
provided, further, that no amendment, waiver or consent affecting the
rights or duties of the Administrative Agent, the Issuing Lender or the
Swingline Lender under any Credit Document shall in any event be effective,
unless in writing and signed by the Administrative Agent, the Issuing Lender
and/or the Swingline Lender, as applicable, in addition to the Lenders required
hereinabove to take such action.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Credit Parties, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default permanently waived shall be deemed to be cured and not continuing;
but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of the
Borrower shall not be required for any amendment, modification or waiver of the
provisions of Article VIII (other than the provisions of Section 8.9); provided,
however, that the Administrative Agent will provide written notice to the
Borrower of any such amendment, modification or waiver. In addition, the
Borrower and the Lenders hereby authorize the Administrative Agent to modify
this Credit Agreement by unilaterally amending or supplementing Schedule 2.1(a)
from time to time in the manner requested by the Borrower, the Administrative
Agent or any Lender in order to reflect any assignments or transfers of the
Loans as provided for hereunder; provided further, however, that the
Administrative Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
Section 9.2 Notices.
Except as otherwise provided in Article II, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (a) when
delivered by hand, (b) when transmitted via telecopy (or other facsimile
device) to the number set out herein, (c) the day following the day on
which the same has been delivered prepaid (or pursuant to an invoice
arrangement) to a reputable national overnight air courier service, or (d)
the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case addressed as
follows in the case of the Borrower, the other Credit Parties and the
Administrative Agent, and as set forth on Schedule 9.2 in the case of the
Lenders, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
The Borrower MPS Group, Inc.
and the other One Independent Drive
Credit Parties: Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Internet Address: xxx.xxxxxxxx.xxx
The Administrative Wachovia Bank, National Association,
as Administrative Agent
Agent: Charlotte Plaza
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xx., XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Will Xxxxx, Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Section 9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans; provided that any representation and warranty made or
deemed made after the Closing Date which by its express terms relates to a
specific date or period shall only be required to be true as of such specific
date or period and all such representations and warranties shall terminate on
the date upon which the Commitments have been terminated and all Credit Party
Obligations have been paid in full.
Section 9.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent and
the Arranger for all their reasonable and other out-of-pocket costs and expenses
incurred in connection with the development, preparation, negotiation, printing
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Credit Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Administrative Agent and the Arranger, (b)
to pay or reimburse each Lender and the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement and the other
Credit Documents, including, without limitation, the reasonable and actual fees
and disbursements of counsel to the Administrative Agent and to the Lenders
(including reasonable allocated costs of in-house legal counsel), and (c) on
demand, to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Credit
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender and the Administrative Agent and their Affiliates harmless from and
against, any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of the Credit Documents and any such other
documents and the use, or proposed use, of proceeds of the Loans (all of the
foregoing, collectively, the "indemnified liabilities"); provided, however, that
the Borrower shall not have any obligation hereunder to the Administrative Agent
or any Lender with respect to indemnified liabilities arising from the gross
negligence, bad faith or willful misconduct of the Administrative Agent or any
such Lender, as determined by a court of competent jurisdiction. The agreements
in this Section 9.5 shall survive repayment of the Loans, Notes and all other
Credit Party Obligations.
Section 9.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the Notes
and their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement or the
other Credit Documents without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment of such
Lender, or any other interest of such Lender hereunder. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. No Lender shall
transfer or grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the scheduled maturity of any Loan or Note or any installment thereon in which
such Participant is participating, or reduce the stated rate or extend the time
of payment of interest or fees thereon (except in connection with a waiver of
interest at the increased post-default rate) or reduce the principal amount
thereof, or increase the amount of the Participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without consent of any participant if the Participant's participation is not
increased as a result thereof), (ii) release all or substantially all of the
Guarantors from their obligations under the Guaranty, (iii) release all or
substantially all of the Collateral, or (iv) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement. In the case of any such participation, the Participant shall not have
any rights under this Agreement or any of the other Credit Documents (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
Participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation; provided
that each Participant shall be entitled to the benefits of Sections 2.14, 2.15,
2.16 and 9.5 with respect to its participation in the Commitments and the Loans
outstanding from time to time; provided further, that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time, sell or assign to
any Lender or any Affiliate or Related Fund thereof and, with the consent of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower (in each case, which consent shall not be unreasonably
withheld or delayed), to one or more additional banks or, financial institutions
or other entities (each a "Purchasing Lender"), all or any part of its rights
and obligations under this Agreement and the Notes in minimum amounts of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof with respect
to its Revolving Commitment, its Revolving Loans (or, if less, the entire amount
of such Lender's obligations), pursuant to a Commitment Transfer Supplement,
executed by such Purchasing Lender and such transferor Lender (and, to the
extent required above, the Administrative Agent and the Borrower), and delivered
to the Administrative Agent for its acceptance and recording in the Register;
provided, however, that any sale or assignment to an existing Lender shall not
require the consent of the Administrative Agent or the Borrower nor shall any
such sale or assignment be subject to the minimum assignment amounts specified
herein. Upon such execution, delivery, acceptance and recording, from and after
the Transfer Effective Date specified in such Commitment Transfer Supplement,
(x) the Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and obligations
of a Lender hereunder with a Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under this Agreement (and,
in the case of a Commitment Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this Agreement,
such transferor Lender shall cease to be a party hereto; provided, however, that
such Lender shall still be entitled to any indemnification rights that expressly
survive hereunder). Such Commitment Transfer Supplement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement and the Notes. On or prior to the Transfer Effective Date specified in
such Commitment Transfer Supplement, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the Notes
delivered to the Administrative Agent pursuant to such Commitment Transfer
Supplement new Notes to the order of such Purchasing Lender in an amount equal
to the Commitment assumed by it pursuant to such Commitment Transfer Supplement
and, unless the transferor Lender has not retained a Commitment hereunder, new
Notes to the order of the transferor Lender in an amount equal to the Commitment
retained by it hereunder. Such new Notes shall be dated the Closing Date and
shall otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Lender shall be returned by the Administrative
Agent to the Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its address referred to in
Section 9.2 a copy of each Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loan recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment Transfer Supplement,
together with payment to the Administrative Agent by the transferor Lender or
the Purchasing Lender, as agreed between them, of a registration and processing
fee of $3,500.00 for each Purchasing Lender listed in such Commitment Transfer
Supplement and the Notes subject to such Commitment Transfer Supplement, the
Administrative Agent shall (i) accept such Commitment Transfer Supplement, (ii)
record the information contained therein in the Register and (iii) give prompt
notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant or
Purchasing Lender (each, a "Transferee") and any prospective Transferee any and
all financial information in such Lender's possession concerning the Borrower
and its Affiliates which has been delivered to such Lender by or on behalf of
the Borrower pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Subsidiaries prior to becoming a party to
this Agreement, in each case subject to the confidentiality provisions in
Section 9.16.
(g) At the time of each assignment pursuant to this Section 9.6 to a Person
which is not already a Lender hereunder and which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for Federal income
tax purposes, the respective assignee Lender shall provide to the Borrower and
the Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a 2.17 Certificate) described in Section 2.17.
(h) Nothing herein shall prohibit any Lender from pledging or assigning any
of its rights under this Agreement (including, without limitation, any right to
payment of principal and interest under any Note) to any Federal Reserve Bank in
accordance with applicable laws.
Section 9.7 Adjustments; Set-off.
(a) Each Lender agrees that if any Lender (a "benefited Lender") shall at
any time receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7.1(e), or otherwise) in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law
(including, without limitation, other rights of set-off), each Lender shall have
the right, without prior notice to any Credit Party, any such notice being
expressly waived by the Credit Parties to the extent permitted by applicable
law, upon the occurrence and during the continuance of any Event of Default, to
setoff and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of any Credit Party, or any part thereof in such amounts as such Lender
may elect, against and on account of the Credit Party Obligations owing to such
Lender hereunder and claims of every nature and description of such Lender
against the Borrower and the other Credit Parties, in any currency, whether
arising hereunder, under the Notes or under any documents contemplated by or
referred to herein or therein, as such Lender may elect, whether or not such
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The aforesaid right of
set-off may be exercised by such Lender against any Credit Party or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of any such
Credit Party, or against anyone else claiming through or against any such Credit
Party or any such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of Default. Each
Lender agrees promptly to notify the applicable Credit Party and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
Section 9.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings herein are
intended for convenience only and shall be ignored in construing this Agreement.
Section 9.9 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same agreement.
Section 9.10 Effectiveness.
This Credit Agreement shall become effective on the date on which all of
the parties have signed a copy hereof (whether the same or different copies) and
shall have delivered the same to the Administrative Agent pursuant to Section
9.2 or, in the case of the Lenders, shall have given to the Administrative Agent
written, telecopied or telex notice (actually received) at such office that the
same has been signed and mailed to it.
Section 9.11 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 9.12 Integration.
This Agreement and the other Credit Documents represent the agreement of
the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Administrative Agent, the Borrower or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Credit Documents.
Section 9.13 Governing Law.
This Agreement and the other Credit Documents and the rights and
obligations of the parties under this Agreement and the other Credit Documents
shall be governed by, and construed and interpreted in accordance with, the law
of the State of North Carolina.
Section 9.14 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Agreement, any Note or any of the other Credit
Documents may be brought in any state or federal court of competent jurisdiction
in the State of North Carolina, and, by execution and delivery of this
Agreement, each of the Borrower and the other Credit Parties accepts, for itself
and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Agreement,
any Note or any other Credit Document from which no appeal has been taken or is
available. Each of the Borrower and the other Credit Parties irrevocably agrees
that all service of process in any such proceedings in any such court may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it at its address set
forth in Section 9.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto, such service being hereby
acknowledged by the each of the Borrower and the other Credit Parties to be
effective and binding service in every respect. Each of the Borrower, the other
Credit Parties, the Administrative Agent and the Lenders irrevocably waives any
objection, including, without limitation, any objection to the laying of venue
based on the grounds of forum non conveniens which it may now or hereafter have
to the bringing of any such action or proceeding in any such jurisdiction.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Lender to bring proceedings
against the Borrower or the other Credit Parties in the court of any other
jurisdiction.
Section 9.15 [Intentionally Omitted].
Section 9.16 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential) solely for use in connection with this Agreement; (b)
to the extent requested by any regulatory authority; (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process
provided, that unless prohibited by applicable law or court order, the
Administrative Agent or such Lender shall notify Borrower as promptly as
practicable after receipt thereof of any governmental request, subpoena or court
order for disclosure of any such non-public information; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this section, to (i) any Purchasing Lender of
or Participant in, or any prospective Purchasing Lender of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Loan
Parties; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates. In
addition, the Administrative Agent and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Revolving
Commitments, and the Credit Extensions. For the purposes of this Section,
"Information" means all information received from any Credit Party relating to
any Credit Party or its business, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by any Credit Party; provided that, in the case of
information received from a Credit Party after the date hereof, such information
is clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Administrative Agent and each Lender
may disclose without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby.
Section 9.17 Acknowledgments.
The Borrower and the other Credit Parties each hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any other Credit Party arising
out of or in connection with this Agreement and the relationship between
Administrative Agent and Lenders, on one hand, and the Borrower and the
other Credit Parties, on the other hand, in connection herewith is solely
that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Borrower or
the other Credit Parties and the Lenders.
Section 9.18 Waivers of Jury Trial.
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
ARTICLE X
GUARANTY
Section 10.1 The Guaranty.
In order to induce the Lenders to enter into this Credit Agreement and any
Hedging Agreement Provider to enter into any Secured Hedging Agreement and to
extend credit hereunder and thereunder and in recognition of the direct benefits
to be received by the Guarantors from the Extensions of Credit hereunder and any
Secured Hedging Agreement, each of the Guarantors hereby agrees with the
Administrative Agent and the Lenders as follows: the Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all Credit Party
Obligations. If any or all of the Credit Party Obligations becomes due and
payable hereunder or under any Secured Hedging Agreement, each Guarantor
unconditionally promises to pay such Credit Party Obligations to the
Administrative Agent, the Lenders, the Hedging Agreement Providers, or their
respective order, or demand, together with any and all reasonable out-of-pocket
expenses which may be incurred by the Administrative Agent or the Lenders in
collecting any of the Credit Party Obligations.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
Section 10.2 Bankruptcy.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders and any Hedging Agreement Provider
whether or not due or payable by the Borrower upon the occurrence of any of the
events specified in Section 7.1(e), and unconditionally promises to pay such
Credit Party Obligations to the Administrative Agent for the account of the
Lenders and to any such Hedging Agreement Provider, or order, on demand, in
lawful money of the United States. Each of the Guarantors further agrees that to
the extent that the Borrower or a Guarantor shall make a payment or a transfer
of an interest in any property to the Administrative Agent, any Lender, or any
Hedging Agreement Provider, which payment or transfer or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, or
otherwise is avoided, and/or required to be repaid to the Borrower or a
Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.
Section 10.3 Nature of Liability.
The liability of each Guarantor hereunder is exclusive and independent of
any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by any
other party, and no Guarantor's liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower or by
any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent, the Lenders, or any Hedging Agreement Provider on the
Credit Party Obligations which the Administrative Agent, such Lenders, or such
Hedging Agreement Providers repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
Section 10.4 Independent Obligation.
The obligations of each Guarantor hereunder are independent of the
obligations of any other guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
Section 10.5 Authorization.
Each of the Guarantors authorizes the Administrative Agent, each Lender and
each Hedging Agreement Provider without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part thereof
in accordance with this Agreement and any Secured Hedging Agreement, including
any increase or decrease of the rate of interest thereon, (b) take and hold
security from any guarantor or any other party for the payment of this Guaranty
or the Credit Party Obligations and exchange, enforce waive and release any such
security, (c) apply such security and direct the order or manner of sale thereof
as the Administrative Agent and the Lenders in their discretion may determine
and (d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors.
Section 10.6 Reliance.
It is not necessary for the Administrative Agent, the Lenders, or any
Hedging Agreement Providers to inquire into the capacity or powers of the
Borrower or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
Section 10.7 Waiver.
(a) Each of the Guarantors waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Administrative Agent,
any Lender or any Hedging Agreement Provider to (i) proceed against the
Borrower, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from the Borrower, any other guarantor or any other
party, or (iii) pursue any other remedy in the Administrative Agent's, any
Lender's, or any Hedging Agreement Provider's power whatsoever. Each of the
Guarantors waives any defense based on or arising out of any defense of the
Borrower, any other guarantor or any other party other than payment in full of
the Credit Party Obligations, including without limitation any defense based on
or arising out of the disability of the Borrower, any other guarantor or any
other party, or the unenforceability of the Credit Party Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the Credit Party Obligations. The
Administrative Agent or any of the Lenders may, at their election, foreclose on
any security held by the Administrative Agent or a Lender by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and any
Lender may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Credit Party Obligations have been paid in
full. Each of the Guarantors waives any defense arising out of any such election
by the Administrative Agent and each of the Lenders, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of the Guarantors against the Borrower or any other party
or any security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notice of protest, notices of dishonor, notices of acceptance of
this Guaranty, and notices of the existence, creation or incurring of new or
additional Credit Party Obligations. Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Credit Party Obligations and the nature, scope and extent of the risks which
such Guarantor assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to advise such Guarantor
of information known to it regarding such circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not exercise any rights of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the U.S. Bankruptcy Code, or
otherwise) to the claims of the Lenders or any Hedging Agreement Provider
against the Borrower or any other guarantor of the Credit Party Obligations of
the Borrower owing to the Lenders or such Hedging Agreement Provider
(collectively, the "Other Parties") and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from any Other Party which it
may at any time otherwise have as a result of this Guaranty until such time as
the Credit Party Obligations shall have been paid in full and the Commitments
have been terminated. Each of the Guarantors hereby further agrees not to
exercise any right to enforce any other remedy which the Administrative Agent,
the Lenders or any Hedging Agreement Provider now have or may hereafter have
against any Other Party, any endorser or any other guarantor of all or any part
of the Credit Party Obligations of the Borrower and any benefit of, and any
right to participate in, any security or collateral given to or for the benefit
of the Lenders and/or the Hedging Agreement Providers to secure payment of the
Credit Party Obligations of the Borrower until such time as the Credit Party
Obligations shall have been paid in full and the Commitments have been
terminated.
Section 10.8 Limitation on Enforcement.
The Lenders and the Hedging Agreement Providers agree that this Guaranty
may be enforced only by the action of the Administrative Agent acting upon the
instructions of the Required Lenders or such Hedging Agreement Provider and that
no Lender or Hedging Agreement Provider shall have any right individually to
seek to enforce or to enforce this Guaranty, it being understood and agreed that
such rights and remedies may be exercised by the Administrative Agent for the
benefit of the Lenders under the terms of this Agreement. The Lenders further
agree that this Guaranty may not be enforced against any director, officer,
employee or stockholder of the Guarantors.
Section 10.9 Confirmation of Payment.
The Administrative Agent and the Lenders will, upon request after payment
of the Credit Party Obligations which are the subject of this Guaranty and
termination of the Commitments relating thereto, confirm to the Borrower, the
Guarantors or any other Person that the Credit Party Obligations have been paid
in full and the Commitments relating thereto terminated, subject to the
provisions of Section 10.2.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its proper and duly authorized officers as of the
day and year first above written.
BORROWER: MPS GROUP, INC.,
a Florida corporation
By:
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
[Signatures Continue on Following Pages]
GUARANTORS: Accounting Principals, Ltd.,
a Pennsylvania limited partnership
By: MODIS, GP, INC.,
a Florida corporation and its General Partner
Xxxxxxx.xxx, Inc.,
a Florida corporation
Idea Integration Corp.,
a Florida corporation
MPS IP Services Corp.,
a Florida corporation
Modis Consulting Partners, Inc.,
a Texas corporation
Modis GP, Inc.,
a Florida corporation
Modis LP-2, Inc.,
a Florida corporation
Special Counsel, Inc.,
a Maryland corporation
By:
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
and Treasurer of each of
the foregoing
ENTEGEE, Inc.,
a Massachusetts corporation
MODIS, INC.,
a Florida corporation
By:
Name: Xxxxxx X. Xxxxxx
Title: Treasurer of each of the
foregoing
[Signatures Continue on Following Pages]
MPS ASSET MANAGEMENT CORP.,
a Florida corporation
SOLIANT HEALTH, INC.,
a Georgia corporation
By:
Name: Xxxxxx X. Xxxxxx
Title: Authorized Representative
of each of the foregoing
[Signatures Continue on Following Pages]
ADMINISTRATIVE AGENT
AND LENDER: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By:
Name:
Title:
(Signatures Continue on Following Pages]
LENDERS: Fleet National Bank,
as Syndication Agent and as a Lender
By:
Name:
Title:
[Signatures Continue on Following Pages]
Lenders: Lloyds TSb Bank Plc,
as a Co-Documentation Agent and as a Lender
By:
Name:
Title:
By:
Name:
Title:
[Signatures Continue on Following Pages]
SunTrust Bank,
as a Co-Documentation Agent and as a Lender
By:
Name:
Title:
[Signatures Continue on Following Pages]
Xxxxxxx XXXXX BUSINESS FINANCIAL SERVICES Inc.,
as a Co-Documentation Agent and as a Lender
By:
Name:
Title:
[Signatures Continue on Following Pages]
BRANCH BANKING AND TRUST COMPANY,
as a Lender
By:
Name:
Title:
[Signatures Continue on Following Page]
LASAlle Bank, National association,
as a Lender
By:
Name:
Title:
[End of Signatures]
