EXHIBIT 10.5
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED OCTOBER 11, 2002
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
BR HOLDING, INC., CAPITAL SPORTS PROPERTIES, INC.,
HOST COMMUNICATIONS, INC.
AND DATASOUTH COMPUTER CORPORATION,
AS BORROWERS,
BULL RUN CORPORATION,
AS GUARANTOR
THE LENDERS PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ISSUING BANK
WACHOVIA SECURITIES, INC.,
AS SOLE LEAD ARRANGER AND BOOK MANAGER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
DATED AS OF OCTOBER 11, 2002
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS.................................................................................. 2
ARTICLE 2 THE LOANS, THE LETTERS OF CREDIT AND THE GUARANTY............................................ 24
Section 2.1 Extension of Credit ....................................................... 24
Section 2.2 Manner of Borrowing and Disbursement of Loans ............................. 25
Section 2.3 Interest .................................................................. 27
Section 2.4 Fees ...................................................................... 28
Section 2.5 Prepayment/Reduction of Commitment ........................................ 30
Section 2.6 Repayment ................................................................. 30
Section 2.7 Notes; Loan Accounts ...................................................... 33
Section 2.8 Manner of Payment ......................................................... 33
Section 2.9 Reimbursement ............................................................. 35
Section 2.10 Pro Rata Treatment ........................................................ 35
Section 2.11 Application of Payments Prior to Acceleration ............................. 36
Section 2.12 Use of Proceeds ........................................................... 37
Section 2.13 All Obligations to Constitute Joint and Several Obligations ............... 37
Section 2.14 Maximum Borrower Liability ................................................ 38
Section 2.15 Maximum Rate of Interest .................................................. 40
Section 2.16 Letters of Credit ......................................................... 41
Section 2.17 The Guaranty .............................................................. 45
ARTICLE 3 CONDITIONS PRECEDENT......................................................................... 48
Section 3.1 Conditions Precedent to Closing ........................................... 48
Section 3.2 Conditions Precedent to Each Advance ...................................... 51
Section 3.3 Conditions Precedent to Each Letter of Credit ............................. 52
ARTICLE 4 REPRESENTATIONS AND WARRANTIES............................................................... 53
Section 4.1 General Representations and Warranties .................................... 53
Section 4.2 Representations and Warranties Relating to Accounts ....................... 60
Section 4.3 Survival of Representations and Warranties, etc ........................... 61
ARTICLE 5 GENERAL COVENANTS............................................................................ 61
Section 5.1 Preservation of Existence and Similar Matters ............................. 61
Section 5.2 Compliance with Applicable Law ............................................ 62
Section 5.3 Maintenance of Properties ................................................. 62
Section 5.4 Accounting Methods and Financial Records .................................. 62
Section 5.5 Insurance ................................................................. 62
Section 5.6 Payment of Taxes and Claims ............................................... 63
Section 5.7 Visits and Inspections .................................................... 63
Section 5.8 Conduct of Business ....................................................... 63
Section 5.9 ERISA ..................................................................... 63
Section 5.10 Lien Perfection ........................................................... 63
Section 5.11 Location of Collateral; Consignment of Inventory .......................... 64
Section 5.12 Protection of Collateral .................................................. 64
Section 5.13 Assignments and Records of Accounts ....................................... 64
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Section 5.14 Administration of Accounts ................................................ 65
Section 5.15 Bank Accounts ............................................................. 65
Section 5.16 Further Assurances ........................................................ 65
Section 5.17 Broker's Claims ........................................................... 66
Section 5.18 Indemnity ................................................................. 66
Section 5.19 Environmental Matters ..................................................... 66
Section 5.20 [Reserved.] ............................................................... 67
Section 5.21 Formation of Subsidiaries ................................................. 67
Section 5.22 E&Y Litigation ............................................................ 67
ARTICLE 6 INFORMATION COVENANTS........................................................................ 67
Section 6.1 Monthly Financial Statements and Information .............................. 67
Section 6.2 Quarterly Financial Statements and Information ............................ 68
Section 6.3 Annual Financial Statements and Information; Certificate of No Default .... 68
Section 6.4 Performance Certificates .................................................. 68
Section 6.5 Access to Accountants ..................................................... 69
Section 6.6 Additional Reports ........................................................ 69
Section 6.7 Notice of Litigation and Other Matters .................................... 70
ARTICLE 7 NEGATIVE COVENANTS........................................................................... 72
Section 7.1 Indebtedness .............................................................. 72
Section 7.2 Guaranties ................................................................ 73
Section 7.3 Liens ..................................................................... 73
Section 7.4 Restricted Payments and Purchases ......................................... 73
Section 7.5 Investments ............................................................... 74
Section 7.6 Affiliate Transactions .................................................... 75
Section 7.7 Liquidation; Change in Ownership, Name, or Year; Disposition or
Acquisition of Assets ..................................................... 75
Section 7.8 Capital Expenditures ...................................................... 77
Section 7.9 Minimum Adjusted EBITDA ................................................... 77
Section 7.10 Minimum Net Worth ......................................................... 77
Section 7.11 Sales and Leasebacks ...................................................... 77
Section 7.12 Amendment and Waiver ...................................................... 77
Section 7.13 ERISA Liability ........................................................... 77
Section 7.14 Prepayments ............................................................... 78
Section 7.15 Negative Pledge ........................................................... 78
Section 7.16 Holding Company Status .................................................... 78
ARTICLE 8 DEFAULT...................................................................................... 78
Section 8.1 Events of Default ......................................................... 78
Section 8.2 Remedies .................................................................. 81
ARTICLE 9 THE ADMINISTRATIVE AGENT..................................................................... 83
Section 9.1 Appointment and Authorization ............................................. 83
Section 9.2 Interest Holders .......................................................... 83
Section 9.3 Consultation with Counsel ................................................. 84
Section 9.4 Documents ................................................................. 84
Section 9.5 Administrative Agent and Affiliates ....................................... 84
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Section 9.6 Responsibility of the Administrative Agent ................................ 84
Section 9.7 Action by Administrative Agent ............................................ 84
Section 9.8 Notice of Default or Event of Default ..................................... 85
Section 9.9 Responsibility Disclaimed ................................................. 85
Section 9.10 Indemnification ........................................................... 85
Section 9.11 Credit Decision ........................................................... 86
Section 9.12 Successor Administrative Agent ............................................ 86
Section 9.13 Administrative Agent May File Proofs of Claim ............................. 86
Section 9.14 Collateral ................................................................ 87
Section 9.15 Release of Collateral ..................................................... 87
Section 9.16 Security Documents ........................................................ 88
Section 9.17 Sole Lead Arranger and Book Manager ....................................... 88
ARTICLE 10 MISCELLANEOUS............................................................................... 88
Section 10.1 Notices ................................................................... 88
Section 10.2 Expenses .................................................................. 90
Section 10.3 Waivers ................................................................... 90
Section 10.4 Set-Off ................................................................... 91
Section 10.5 Assignment ................................................................ 91
Section 10.6 Counterparts; Facsimile Transmission ...................................... 93
Section 10.7 Governing Law ............................................................. 94
Section 10.8 Severability .............................................................. 94
Section 10.9 Headings .................................................................. 94
Section 10.10 Source of Funds ........................................................... 94
Section 10.11 Entire Agreement .......................................................... 94
Section 10.12 Amendments and Waivers .................................................... 94
Section 10.13 Other Relationships ....................................................... 95
Section 10.14 Pronouns .................................................................. 95
Section 10.15 Disclosure ................................................................ 95
Section 10.16 Replacement of Lender ..................................................... 95
Section 10.17 Confidentiality ........................................................... 96
Section 10.18 Amendments to Loan Documents .............................................. 96
ARTICLE 11 YIELD PROTECTION............................................................................ 96
Section 11.1 Eurodollar Rate Basis Determination ....................................... 96
Section 11.2 Illegality ................................................................ 96
Section 11.3 Increased Costs ........................................................... 97
Section 11.4 Effect On Other Advances .................................................. 98
Section 11.5 Capital Adequacy .......................................................... 98
ARTICLE 12 JURISDICTION, VENUE AND WAIVER OF JURY TRIAL................................................ 98
Section 12.1 Jurisdiction and Service of Process ....................................... 98
Section 12.2 Consent to Venue .......................................................... 99
Section 12.3 Waiver of Jury Trial ...................................................... 99
ARTICLE 13 RELEASES.................................................................................... 100
Section 13.1 Release of Bank of America, N.A., as Administrative Agent under the
Prior Credit Agreement .................................................... 100
Section 13.2 Release ................................................................... 100
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EXHIBITS
Exhibit A - Form of Borrower Pledge Agreement
Exhibit A-2 - Form of Supplemental Borrower Pledge Agreement
Exhibit B - Form of Borrowing Base Certificate
Exhibit C - Form of Host Pledge Agreement
Exhibit D - [Reserved]
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Parent Pledge Agreement
Exhibit G - Form of Partnership Pledge Agreement
Exhibit H - Form of Purpose Credit Borrower Pledge Agreement
Exhibit I - Form of Request for Advance
Exhibit J - Form of Request for Issuance of Letter of Credit
Exhibit K - Form of Revolving Loan Note
Exhibit L - Form of Xxxxxxxx Guaranty
Exhibit M - Form of Xxxxxxxx Pledge Agreement
Exhibit N - Form of Security Agreement
Exhibit O - Form of Subsidiary Guaranty
Exhibit P - Form of Subsidiary Pledge Agreement
Exhibit Q - Form of Subsidiary Security Agreement
Exhibit R - Form of Trademark Security Agreement
Exhibit S - Form of Tranche A Loan Note
Exhibit T - Form of Tranche B Loan Note
Exhibit U - Form of Borrower Loan Certificate
Exhibit V - Form of Subsidiary Loan Certificate
Exhibit W - Form of Parent Loan Certificate
Exhibit X - Form of Performance Certificate
SCHEDULES
Schedule 1 - Commitment Ratios; Lender and Issuing Bank Addresses
Schedule 2 - Liens
Schedule 3 - Subordinated Debt
Schedule 4.1(c) - Partnerships; Joint Ventures; Subsidiaries
Schedule 4.1(d) - Capital Stock
Schedule 4.1(h) - Material Contracts; Labor Matters
Schedule 4.1(i) - Taxes
Schedule 4.1(l) - Investments and Guaranties
Schedule 4.1(m) - Liabilities; Litigation
Schedule 4.1(o) - Intellectual Property; Licenses
Schedule 4.1(w) - Real Property
Schedule 4.1(x) - Environmental Matters
Schedule 4.1(z) - Change of Name; Tradenames
Schedule 5.11 - Locations of Collateral
Schedule 5.15 - Bank Accounts
Schedule 7.2 - Guarantees
Schedule 7.6 - Affiliate Transactions
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 11,
2002 among BR HOLDING, INC., a Georgia corporation ("Bull Run"), CAPITAL SPORTS
PROPERTIES, INC., a Delaware corporation ("Capital"), HOST COMMUNICATIONS,
INC., a Kentucky corporation ("Host") and DATASOUTH COMPUTER CORPORATION, a
Delaware corporation ("Datasouth", and together with Bull Run, Capital, and
Host, the "Borrowers"), BULL RUN CORPORATION (the "Parent" and as a Guarantor),
the LENDERS party hereto (the "Lenders"), WACHOVIA BANK, NATIONAL ASSOCIATION
(an "Issuing Bank"), and WACHOVIA BANK, NATIONAL ASSOCIATION (the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, the Parent, the lenders party thereto, Bank of
America, N.A. and Bank One, Kentucky, NA, as issuing banks, Wachovia Bank,
National Association (f/k/a First Union National Bank), as syndication agent,
and Bank of America, N.A., as administrative agent, are parties to that certain
Amended and Restated Credit Agreement dated as of July 27, 2001 (as amended and
modified and in effect) on the date hereof, the "Prior Credit Agreement"); and
WHEREAS, the Borrowers, the Parent, the Lenders, the Issuing Banks and
the Administrative Agent have agreed to amend and restate the Prior Credit
Agreement in its entirety as, and in accordance with and subject to the terms
and conditions, set forth herein; and
WHEREAS, each of the Borrowers and the Parent acknowledges and agrees
that the security interest granted to Bank of America, N.A., in its capacity as
administrative agent, pursuant to the Prior Credit Agreement and the other
"Loan Documents" (as defined in the Prior Credit Agreement), shall remain
outstanding and in full force and effect in accordance with the Prior Credit
Agreement and shall continue to secure the Obligations (as defined herein); and
WHEREAS, Bull Run and Datasouth have agreed to secure the Tranche B
Loans and the Revolving Loans, together with the Tranche A Loans, with the
Collateral as a contemporaneous exchange for value based upon the Lenders'
agreement, pursuant to this Agreement on the terms and conditions set forth
herein, to extend the "Maturity Date" (as defined in the Prior Credit
Agreement) and reduce the "Interest Rate Margin" (as defined in the Prior
Credit Agreement) set forth in the Prior Credit Agreement; and
WHEREAS, each of the Borrowers, the Parent, the Lenders, the Issuing
Banks and the Administrative Agent acknowledges and agrees that (a) the
Obligations (as defined herein) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
"Obligations" (as defined in the Prior Credit Agreement) arising in connection
with the Prior Credit Agreement and other "Loan Documents" (as defined in the
Prior Credit Agreement) executed in connection therewith; (b) the Borrowers,
the Parent, the Lenders, the Issuing Banks and the Administrative Agent intend
that the Prior Credit Agreement and the other "Loan Documents" (as defined in
the Prior Credit Agreement) executed in connection therewith and the collateral
pledged thereunder shall secure, without interruption or impairment
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of any kind, all existing "Indebtedness" (as defined in the Prior Credit
Agreement) under the Prior Credit Agreement and the other "Loan Documents" (as
defined in the Prior Credit Agreement) executed in connection therewith as they
may be amended, restated, renewed, extended, consolidated and modified
hereunder, together with all other obligations hereunder; (c) all "Liens" (as
defined in the Prior Credit Agreement) created by the Prior Credit Agreement
and the other "Loan Documents" (as defined in the Prior Credit Agreement)
executed in connection therewith are hereby ratified, confirmed and continued;
and (d) the Loan Documents (as defined herein) are intended to restate, renew,
extend, consolidate, amend and modify the Prior Credit Agreement and the other
"Loan Documents" (as defined in the Prior Credit Agreement) executed in
connection therewith; and
WHEREAS, each of the Borrowers, the Parent, the Lenders, the Issuing
Banks and the Administrative Agent intend that (a) the provisions of the Prior
Credit Agreement and the other "Loan Documents" (as defined in the Prior Credit
Agreement) executed in connection therewith, to the extent restated, renewed,
extended, consolidated, amended and modified hereby, be hereby superseded and
replaced by the provisions hereof and of the other Loan Documents (as defined
herein); (b) the Notes (as defined herein) restate, renew, extend, consolidate,
amend, modify, replace, are substituted for and supersede in its entirety, but
do not extinguish, the "Indebtedness" (as defined in the Prior Credit
Agreement) evidenced by the "Notes" (as defined in the Prior Credit Agreement)
issued pursuant to the Prior Credit Agreement; and (c) by entering into and
performing their respective obligations hereunder, this transaction shall not
constitute a novation;
WHEREAS, Deutsche Bank Trust Company Americas has agreed to become a
party this Agreement (as defined below) as a Lender; and
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties hereto hereby amend and restate in its entirety the Prior
Credit Agreement as follows:
ARTICLE 1
DEFINITIONS
"Account Debtor" shall mean any Person who is obligated under an
Account.
"Accounts" shall mean all accounts, contract rights, chattel paper,
instruments, drafts, acceptances and documents of each Borrower arising from
the sale or lease of goods or the provision of services by each Borrower in the
ordinary course of its business, whether secured or unsecured, billed or
unbilled and whether now existing or hereafter created or arising, and
"Account" shall mean any one of the foregoing.
"Adjusted EBITDA" shall mean, with respect to the Parent and its
Subsidiaries on a consolidated basis for any period, EBITDA for such period,
plus, without duplication and to the extent not included in EBITDA for such
period, (a) cash option income received during such period, (b) cash interest
income received during such period, (c) cash dividend income received
2
during such period, and (d) to the extent treated as an operating expense for
such period, non-cash stock compensation expense.
"Administrative Agent" shall mean Wachovia Bank, National Association,
acting as agent for the Issuing Banks and the Lenders, and any successor agent
appointed pursuant to Section 9.12.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, or such other office as may be designated
pursuant to the provisions of Section 10.1 of this Agreement.
"Advance" or "Advances" shall mean amounts of the Loans advanced by
the Lenders to any of the Borrowers pursuant to Section 2.2 hereof on the
occasion of any borrowing.
"Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under common control with any Borrower, and any Person who is
a director, officer or partner of any Borrower. For purposes of this
definition, "control", when used with respect to any Person, includes, without
limitation, the direct or indirect beneficial ownership of ten percent (10%) or
more of the outstanding voting securities or voting equity of such Person or
the power to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"Agreement" shall mean this Agreement.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Aggregate Commitment Ratios" shall mean the percentage in which the
Lenders are severally bound to make Advances to the Borrowers under the
Revolving Loan Commitment and the Term Loan Commitments, which, as of the
Agreement Date, are set forth (together with dollar amounts thereof) on
Schedule 1 attached hereto.
"Aggregate Revolving Credit Obligations" shall mean, as of any
particular time, the sum of (a) the aggregate principal amount of all Revolving
Loans then outstanding, plus (b) the aggregate stated amount of all Letter of
Credit Obligations then outstanding.
"AMT" shall mean AMT Datasouth Corp. (formerly known as Advanced
Matrix Technology, Inc.), a California corporation.
"AMT Note" shall mean that certain Subordinated Promissory Note dated
July 1, 2002, issued by AMT in favor of Datasouth in the original principal
amount of $3,392,350.43, to amend and restate that certain Subordinated
Promissory Note dated September 27, 2000, issued by AMT in favor of Datasouth
in the original principal amount of $4,285,074.18.
"AMT Subordination Agreement" shall mean that certain Subordination
Agreement dated July 25, 2002, executed by Datasouth and AMT in favor of Celtic
Capital Corporation, with respect to the AMT Note, and any replacement thereof
executed by Datasouth and AMT in
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favor of any lender which succeeds Celtic Capital Corporation as AMT's senior
lender in a form reasonably acceptable to the Administrative Agent.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, laws, statutes, rules, regulations, and orders of
governmental bodies or regulatory agencies applicable to such Person, and all
orders and decrees of all courts and arbitrators in proceedings or actions to
which the Person in question is a party or by which it is bound.
"Assignment and Assumption Agreement" shall mean a form of Assignment
and Assumption Agreement in form and substance satisfactory to the
Administrative Agent, pursuant to which each Lender may, as further provided in
Section 10.5 hereof, sell or participate a portion of its Loans or Commitments.
"Assignment of Note" shall mean that certain Second Amended and
Restated Assignment of Note of even date herewith from Datasouth in favor of
the Administrative Agent, on its behalf and on behalf of the Issuing Banks and
the Lenders, in form and substance acceptable to the Administrative Agent.
"Authorized Signatory" shall mean as to any Person, such senior
personnel of such Person as may be duly authorized and designated in writing by
such Person to execute documents, agreements, and instruments on behalf of such
Person.
"Available Letter of Credit Amount" shall mean, as of any particular
time, an amount equal to the lesser of (a) the Letter of Credit Commitment then
in effect and (b) the Available Revolving Loan Commitment.
"Available Revolving Loan Commitment" shall mean, as of any particular
time, (a) the amount of the Revolving Loan Commitment minus (b) the Aggregate
Revolving Credit Obligations then outstanding.
"Availability Reserves" shall mean the amount of reserves which the
Administrative Agent shall have established, in its reasonable discretion, as
the Administrative Agent shall have determined necessary, including, without
limitation, for (i) price adjustments and damages; (ii) unpaid rent or other
charges due and owing to any landlord, bailee, or warehouseman of any leased
premises where Collateral is located; and (iii) accrued but unpaid ad valorem
and personal property tax liability.
"Avoidance Provisions" shall have the meaning ascribed thereto in
Section 2.14(a) hereof.
"Bankruptcy Code" shall mean the United States Bankruptcy Code (11
U.S.C. Section 101 et seq.), as now or hereafter amended, and any successor
statute.
"Base Rate" shall mean, at any time, a fluctuating and floating rate
per annum equal to the higher of: (a) 0.50% per annum above the latest Federal
Funds Rate; and (b) the rate of interest announced publicly by the
Administrative Agent from time to time, as its "prime rate" for the
determination of interest rate loans of varying maturities in United States
dollars to United States residents of varying degrees of credit worthiness.
Such "prime rate" is not
4
necessarily the lowest rate of interest charged to borrowers of the
Administrative Agent, and the Administrative Agent may make commercial loans or
other loans at rates of interest at, above, or below such "prime rate". Each
change in the prime rate announced by the Administrative Agent shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Advance" shall mean an Advance which a Borrower requests to
be made as a Base Rate Advance or which is converted to a Base Rate Advance, in
accordance with the provisions of Sections 2.2, 11.2 or 11.3 hereof.
"Board" shall mean the Board of Governors of the Federal Reserve
System.
"Borrower Pledge Agreement" shall mean that certain Second Amended and
Restated Borrower Pledge Agreement of even date herewith executed by the
Borrowers in favor of the Administrative Agent, in substantially the form
attached hereto as Exhibit A, pursuant to which each of the Borrowers pledges
to the Administrative Agent, for its benefit and for the benefit of the Issuing
Banks and the Lenders, all of the Capital Stock, whether now owned or hereafter
acquired, of their respective Subsidiaries (and, with respect to any
wholly-owned foreign Subsidiary, 65% of such Capital Stock) and all other
Capital Stock owned or hereafter acquired by any Borrower (other than the
Tranche A Collateral), as the same may be amended, restated, supplemented or
otherwise modified from time to time hereafter.
"Borrowers" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Borrowing Base" shall mean, at any particular time, (a) the Eligible
Accounts minus (b) Availability Reserves.
"Borrowing Base Certificate" shall mean a certificate of an Authorized
Signatory substantially in the form of Exhibit B attached hereto.
"Bull Run" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Business Day" shall mean any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of Georgia or is a day
on which banking institutions located in such state are closed; provided,
however, that when used with reference to a Eurodollar Advance (including the
making, continuing, prepaying or repaying of any Eurodollar Advance), the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in deposits of United States dollars on the London interbank market.
"Call Option" shall have the meaning set forth in the Xxxxxxxx
Guaranty.
"Capital" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Capital Expenditures" shall mean, for any period, on a consolidated
basis for the Parent and its Subsidiaries, the aggregate of all expenditures
made by the Parent or any of its
5
Subsidiaries during such period that, in conformity with GAAP, are required to
be included in or reflected on the consolidated balance sheet as a capital
asset of the Parent and its Subsidiaries, excluding Capitalized Lease
Obligations.
"Capital Stock" shall mean, as applied to any Person, any capital
stock (including, without limitation, all series of preferred stock of such
Person), general or limited partnership interests, limited liability company
interests or other equivalents of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange
rights, voting rights, calls or claims of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"CBS Contract" shall mean that certain Letter Agreement dated as of
September 26, 2002, by and between Host and CBS Sports, a division of CBS
Broadcasting, Inc., the term of which commenced on September 27, 2002, executed
by Host and CBS Sports.
"Change in Control" shall mean (a) with respect to the Parent,
approval by the stockholders of the Parent of a merger, reorganization,
consolidation, exchange of shares, recapitalization, restructuring or other
business combination which would result in (i) ownership of more than fifty
percent (50%) of the voting Capital Stock of the Parent being acquired by any
Person other than Xxxxxxxx, the Xxxxxxxx Affiliates or management of the
Borrowers as of the Agreement Date, or (ii) a change in the majority of the
Board of Directors of the Parent; or (b) with respect to each of the Borrowers,
the Parent ceasing to own and control, directly or indirectly, free of any Lien
or encumbrance other than Liens in favor of the Administrative Agent and the
Lenders, one hundred percent (100%) of the outstanding Capital Stock thereof,
except as permitted pursuant to Section 7.7(e) hereof, provided, that after any
such permitted merger or consolidation becomes effective, the Parent shall
continue to own and control, directly or indirectly, one hundred percent (100%)
of the outstanding Capital Stock of the surviving Borrower; or (c) any Borrower
sells all or substantially all of its assets to any Person other than another
Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all property pledged as collateral security
for the Obligations pursuant to the Security Documents or otherwise, and all
other property of any Borrower that is now or hereafter in the possession or
control of the Administrative Agent, the Issuing Banks or any Lender or on
which the Administrative Agent, the Issuing Banks or any Lender has been
granted a Lien.
"Collateral Disposition Proposal" shall have the meaning set forth in
Section 7.7(b)(iii) hereof.
"Commitments" shall mean, collectively, the Revolving Loan Commitment
and the Term Loan Commitments.
"Contributing Borrower" shall have the meaning set forth in Section
2.14(d) hereof.
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"Customer Dispute" shall mean all instances in which (i) a customer of
any Borrower has rejected or returned the goods and such return or rejection
has been accepted by any Borrower as a valid return or rejection, or (ii) any
customer of a Borrower has otherwise affirmatively asserted grounds for
nonpayment of an Account, including, without limitation, any repossession of
goods by any Borrower, or any claim by an Account Debtor of total or partial
failure of delivery, set-off, counterclaim, breach of warranty or the
performance of services.
"Datasouth" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Date of Issue" shall mean the date on which an Issuing Bank issues a
Letter of Credit pursuant to Section 2.16 hereof.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof regardless of whether there shall have occurred
any passage of time or giving of notice (or both) that would be necessary in
order to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to,
(a) with respect to outstanding principal, the sum of (i) he applicable
Interest Rate Basis, plus (ii) the applicable Interest Rate Margin, plus (iii)
two percent (2%), and (b) with respect to all other Obligations, the sum of (i)
the Base Rate, plus (ii) the Interest Rate Margin, plus (iii) two percent (2%).
"Dividends" shall mean, any direct or indirect distribution, dividend,
or payment to any Person on account of any Capital Stock of a Borrower or any
Subsidiary of a Borrower.
"E&Y Litigation" shall mean the litigation filed by the Parent on
January 8, 2002 against Ernst & Young LLP, claiming negligent misrepresentation
in connection with the audit reports issued by Ernst & Young LLP on the audited
financial statements of Universal Sports America, Inc. prior to Bull Run's
acquisition of Universal Sports America, Inc. in December 1999.
"EBITDA" shall mean, with respect to the Parent and its Subsidiaries
on a consolidated basis for any period, Operating Income for such period, plus,
without duplication and to the extent deducted from Operating Income for such
period in the statement of operations, the sum of (a) Interest Expense, (b)
income taxes, (c) depreciation and amortization expense, (d) equity in losses
in Affiliates in which the Parent has a direct or indirect ownership interest
in less than 100% of such Affiliate, and (e) the Xxxxxxxx Compensation Amount
to the extent deducted from Operating Income; less, without duplication, to the
extent included in Operating Income, equity in earnings in Affiliates in which
the Parent has a direct or indirect ownership interest in less than 100% of
such Affiliate.
"Eligible Accounts" shall mean, at any particular date, all Accounts
of the Borrowers on a consolidated basis, but excluding each of the following
Accounts:
(a) Accounts (other than Accounts from corporate
partners) with respect to which more than ninety (90) days have elapsed since
the due date of the original invoice therefor or more than one hundred twenty
(120) days have elapsed since the date of the original invoice therefor and
Accounts from corporate partners with respect to which more than sixty (60)
days
7
have elapsed since the due date of the original invoice therefor or more than
one hundred fifty (150) days have elapsed since the date of the original
invoice therefor;
(b) with respect to which any of the representations,
warranties, covenants, and agreements contained in Section 4.2 are not or have
ceased to be complete and correct or have been breached;
(c) with respect to which, in whole or in part, a check,
promissory note, draft, trade acceptance or other instrument for the payment of
money has been received, presented for payment and returned uncollected for any
reason;
(d) as to which such Borrower has not performed, as of
the applicable calculation date, all of its obligations then required to have
been performed, including, without limitation, the delivery of merchandise or
rendition of services applicable to such Account;
(e) as to which any one or more of the following events
has occurred with respect to the Account Debtor on such Account: death or
judicial declaration of incompetency of an Account Debtor who is an individual;
the filing by or against the Account Debtor of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as
a bankrupt, winding-up, or other relief under the bankruptcy, insolvency, or
similar laws of the United States, any state or territory thereof, or any
foreign jurisdiction, now or hereafter in effect; the making of any general
assignment by the Account Debtor for the benefit of creditors; the appointment
of a receiver or trustee for the Account Debtor or for any of the assets of the
Account Debtor, including, without limitation, the appointment of or taking
possession by a "custodian," as defined in Title 11 of the United States Code;
the institution by or against the Account Debtor of any other type of
insolvency proceeding (under the bankruptcy laws of the United States or
otherwise) or of any formal or informal proceeding for the dissolution or
liquidation of, settlement of claims against, or winding up of affairs of, the
Account Debtor; the sale, assignment, or transfer of all or substantially all
of the assets of the Account Debtor; the nonpayment generally by the Account
Debtor of its debts as they become due; or the cessation of the business of the
Account Debtor as a going concern;
(f) (i) those Accounts (other than Accounts covered
under item (i) of this definition below) of Account Debtors for whom fifty
percent (50%) or more of the aggregate dollar amount of such Account Debtor's
outstanding Accounts are classified as ineligible under the other criteria
other than this subsection set forth herein; or (ii) Accounts owed by any
single Account Debtor the aggregate dollar amount of which exceeds twenty-five
percent (25%) of the aggregate amount of all Accounts at such time, but only to
the extent of such excess;
(g) owed by an Account Debtor which: (i) does not
maintain its chief executive office in the United States; or (ii) is not
organized under the laws of the United States or any state or province thereof;
or (iii) is the government of any foreign country or sovereign state, or of any
state, province, municipality, or other political subdivision thereof, or of
any department, agency, public corporation, or other instrumentality thereof;
(h) owed by an Account Debtor which is an Affiliate or
employee of any Borrower;
8
(i) which is owed by an Account Debtor to which any
Borrower is indebted in any way, or which is subject to any right of setoff by
the Account Debtor, unless the Account Debtor has entered into an agreement
acceptable to the Administrative Agent to waive setoff rights;
(j) which is subject to any Customer Dispute, but only
to the extent of such Customer Dispute;
(k) which are owed by the government of the United
States, or any department, agency, public corporation, or other instrumentality
thereof, unless all required procedures for the effective collateral assignment
of the Account under the Federal Assignment of Claims Act of 1940 and any other
steps necessary to perfect the Administrative Agent's security interest in such
Account have been complied with to the Administrative Agent's reasonable
satisfaction with respect to such Account;
(l) which is owed by any state, municipality, or other
political subdivision of the United States, or any department, agency, public
corporation, or other instrumentality thereof and as to which the
Administrative Agent reasonably determines that its security interest therein
is not or cannot be perfected;
(m) which represent a sale (i) on a xxxx-and-hold basis,
or (ii) on a Guaranteed sale, sale and return, sale on approval, consignment,
or other repurchase or return basis;
(n) which is evidenced by a promissory note or other
instrument or by chattel paper;
(o) if the Account Debtor thereunder is located in West
Virginia, New Jersey or Minnesota unless if, at the time the Account was
created and at all times thereafter, (a) the applicable Borrower has filed and
has maintained effective a current Notice of Business Activities Report with
the appropriate office or agency of the State of West Virginia, New Jersey or
Minnesota, as applicable, or (b) the applicable Borrower was and has continued
to be exempt from the filing of such Report and has provided the Administrative
Agent with satisfactory evidence thereof;
(p) as to which the applicable Account Debtor has not
been sent an invoice and the eventual due date is greater than one hundred
eighty (180) days from the date when the Account is first counted in the
Borrowing Base;
(q) which is not a bona fide, valid and, to the best of
the Borrowers' knowledge, enforceable obligation of the Account Debtor
thereunder;
(r) which are owed by an Account Debtor with whom any
Borrower has any agreement or understanding for deductions from the Account,
except for discounts or allowances which are made in the ordinary course of
business for prompt payment or volume purchases and which discounts or
allowances are reflected in the calculation of the face value of each invoice
related to such Account;
9
(s) which are not subject to a valid and continuing
first priority Lien in favor of the Administrative Agent pursuant to the
Security Documents as to which all action necessary or desirable to perfect
such security interest shall have been taken, and to which such Borrower has
good and marketable title, free and clear of any Liens (other than Liens in
favor of the Administrative Agent);
(t) as to which the applicable Account Debtor has been
invoiced more than ninety (90) days preceding the due date for such invoice; or
(u) as to which a security agreement, financing
statement, equivalent security or Lien instrument or continuation statement is
on file or of record in any public office, except as may have been filed in
favor of the Administrative Agent pursuant to the Security Documents.
"Environmental Laws" shall mean any and all applicable federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or requirements of any Governmental Authority regulating,
relating to or imposing liability or standards of conduct concerning
environmental protection matters, including without limitation, Hazardous
Materials, as now or may at any time during the term hereof be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as in effect on the Agreement Date and as such Act may be amended
thereafter from time to time.
"ERISA Affiliate" shall mean any "affiliate" of any Borrower within
the meaning of Section 414 of the Code.
"Eurodollar Advance" shall mean an Advance which a Borrower requests
to be made as a Eurodollar Advance or which is continued as or converted to a
Eurodollar Advance, in accordance with the provisions of Section 2.2 hereof.
"Eurodollar Advance Period" shall mean, for each Eurodollar Advance,
each one, two, three, or six month period, as selected by the Borrowers
pursuant to Section 2.2 hereof, during which the applicable Eurodollar Rate
shall remain unchanged. Notwithstanding the foregoing, however: (i) any
applicable Eurodollar Advance Period which would otherwise end on a day which
is not a Business Day shall be extended to the next succeeding Business Day,
unless such Business Day falls in another calendar month, in which case such
Eurodollar Advance Period shall end on the next preceding Business Day; (ii)
any applicable Eurodollar Advance Period which begins on a day for which there
is no numerically corresponding day in the calendar month during which such
Eurodollar Advance Period is to end shall (subject to clause (i) above) end on
the last day of such calendar month; and (iii) no Eurodollar Advance Period
shall extend beyond the Maturity Date or such earlier date as would interfere
with the repayment obligations of the Borrowers under Section 2.6 hereof.
Interest shall be due and payable with respect to any Advance as provided in
Section 2.3 hereof.
"Eurodollar Basis" shall mean a simple per annum interest rate equal
to the quotient of (i) the Eurodollar Rate divided by (ii) one minus the
Eurodollar Reserve Percentage, stated as a decimal. The Eurodollar Basis shall
be rounded upward to the nearest one hundredth of one percent (1/100%) and,
once determined, shall remain unchanged during the applicable
10
Eurodollar Advance Period, except for changes to reflect adjustments in the
Eurodollar Reserve Percentage.
"Eurodollar Rate" shall mean, for any Eurodollar Advance, for the
Eurodollar Advance Period of such Eurodollar Advance, the rate per annum
determined on the basis of the offered rate for deposits in U.S. dollars of
amounts equal or comparable to the principal amount of such Eurodollar Advance
offered for a term comparable to such Eurodollar Advance Period, which rates
appear on Telerate Page 3750 effective as of 11:00 A.M., London time, two (2)
London banking days prior to the first day of such Eurodollar Advance Period,
provided that if no such offered rates appear on such page, the "Eurodollar
Rate" for such Eurodollar Advance Period will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100th of 1%) of rates
quoted by not less than two (2) major lenders in New York City, selected by the
Administrative Agent, at approximately 10:00 A.M., New York City time, two (2)
London banking days prior to the first day of such Eurodollar Advance Period,
for deposits in U.S. dollars offered by leading European banks for a period
comparable to such Eurodollar Advance Period in an amount comparable to the
principal amount of such Eurodollar Advance.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board, as such regulation
may be amended from time to time, as the maximum reserve requirement applicable
with respect to Eurocurrency Liabilities (as that term is defined in Regulation
D), whether or not any Lender has any Eurocurrency Liabilities subject to such
reserve requirement at that time. The Eurodollar Basis for any Eurodollar
Advance shall be adjusted as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is
to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (ii) if such rate is not
so published for any day, the Federal Funds Rate for such day shall be the
average rate charged to the Administrative Agent on such day on such
transactions, as determined by the Administrative Agent.
"Fee Letters" shall mean those certain fee letters of even date
herewith executed by the Borrowers and addressed to the Administrative Agent
and the Lenders.
"Funded Debt" shall mean, with respect to the Parent and its
Subsidiaries on a consolidated basis and without duplication, (i) all then
currently outstanding obligations, liabilities and indebtedness of the types
described in subsections (a) through (g) of the definition of Indebtedness set
forth herein, including, but not limited to, all such obligations under the
Loan Documents.
11
"Funding Borrower" shall have the meaning set forth in Section 2.14(d)
hereof.
"GAAP" shall mean, as in effect from time to time, United States
generally accepted accounting principles consistently applied.
"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.
"Guarantors" shall mean, collectively, the Parent, Xxxxxxxx and each
Subsidiary of any Borrower that guarantees payment of the Obligations hereunder
and under the other Loan Documents.
"Guaranty" or "Guaranteed," as applied to an obligation (each a
"primary obligation"), shall mean and include (a) any guaranty, direct or
indirect, in any manner, of any part or all of such primary obligation, and (b)
any agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to assure in any way the payment or performance (or payment
of damages in the event of non-performance) of any part or all of such primary
obligation, including, without limiting the foregoing, any reimbursement
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit, and any obligation of any Person, whether or not contingent, (i) to
purchase any such primary obligation or any property or asset constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of such primary obligation or (2) to maintain working
capital, equity capital or the net worth, cash flow, solvency or other balance
sheet or income statement condition of any other Person, (iii) to purchase
property, assets, securities or services primarily for the purpose of assuring
the owner or holder of any primary obligation of the ability of the primary
obligor with respect to such primary obligation to make payment thereof or (iv)
otherwise to assure or hold harmless the owner or holder of such primary
obligation against loss in respect thereof.
"Hazardous Materials" shall mean any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances, petroleum
products (including crude oil or any fraction thereof), friable asbestos
containing materials defined or regulated as such in or under any Environmental
Law.
"Host" shall have the meaning set forth in the introductory paragraph
to this Agreement.
"Host Pledge Agreement" shall mean that certain Second Amended and
Restated Host Pledge Agreement of even date herewith executed by X. Xxxxx Host
in favor of the Administrative Agent, in substantially the form attached hereto
as Exhibit C, pursuant to which Xxxxx Host pledges to the Administrative Agent,
for its benefit and for the benefit of the Issuing Banks and the Lenders,
1,113,067 shares of common stock of the Parent and warrants, options or
purchase rights with respect to the purchase of 53,600 shares of common stock
of the Parent, as the same may be amended, restated, supplemented or otherwise
modified from time to time hereafter.
"Initial Collateral Value" shall mean the value of any additional
Collateral pledged under the Xxxxxxxx Pledge Agreement as of the date such
additional Collateral is pledged under the Xxxxxxxx Pledge Agreement.
12
"Indebtedness" shall mean, with respect to the Parent and its
Subsidiaries and without duplication, (a) any obligation for borrowed money;
(b) any obligation evidenced by bonds, debentures, notes or other similar
instruments; (c) any obligation to pay the deferred purchase price of property
or for services (other than in the ordinary course of business); (d) any
Capitalized Lease Obligation; (e) any obligation or liability of others secured
by a Lien on property owned by any Borrower or any such Subsidiary, whether or
not such obligation or liability is assumed, the amount of liability to be the
fair market value of the property pledged; (f) any letter of credit issued for
the account of any Borrower or any such Subsidiary; (g) any net payment
obligation under any Interest Hedge Agreement; (h) any Guaranty; and (i) any
other obligation or liability which is required by GAAP to be shown as a
liability on a consolidated balance sheet of the Parent and its Subsidiaries
(except items of shareholders' equity or Capital Stock or surplus or general
contingency or deferred tax reserves or any other reserves required under
GAAP).
"Insolvency Proceeding" shall have the meaning set forth in Section
2.17.
"Interest Expense" shall mean, for any period, interest expense of the
Parent and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, and including capitalized and non-capitalized interest and the
interest component of Capitalized Lease Obligations.
"Interest Hedge Agreements" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"Interest Rate Basis" shall mean the Base Rate or the Eurodollar
Basis, as appropriate.
"Interest Rate Margin" shall mean, (a) with respect to Base Rate
Advances, three-quarters percent (0.75%) and (b) with respect to Eurodollar
Advances and Letter of Credit Obligations, three and three-quarters percent
(3.75%), provided, however, that (i) in the event that Xxxxxxxx pledges
additional Collateral under the Xxxxxxxx Pledge Agreement which in the
aggregate have Initial Collateral Values equal to or greater then $10,000,000,
the Interest Rate Margin shall mean with respect to Eurodollar Advances and
Letter of Credit Obligations three and one-quarter percent (3.25%), and (ii)
during the period of any Xxxxxxxx Collateral Event, the Interest Rate Margin
shall mean (c) with respect to Base Rate Advances, zero percent (0.00%) and (d)
with respect to Eurodollar Advances and Letter of Credit Obligations, two and
three-quarters percent (2.75%).
"Inventory" shall mean all goods, merchandise and other personal
property owned and held for sale, and all raw materials, materials and supplies
of every nature which contribute to the finished products of the Borrowers in
the ordinary course of their business, whether now owned or hereafter acquired
by any Borrower.
13
"Investment" shall have the meaning set forth in Section 7.5 hereof.
"Issuing Banks" shall mean Wachovia Bank, National Association and any
other Person who hereafter may be designated as an Issuing Bank pursuant to an
Assignment and Assumption Agreement or otherwise; and "Issuing Bank" shall mean
any one of the foregoing.
"Lenders" shall mean those lenders whose names are set forth on the
signature pages hereof under the heading "Lenders" and any assignees of the
Lenders who hereafter become parties hereto pursuant to and in accordance with
Section 10.5 hereof; and "Lender" shall mean any one of the foregoing Lenders.
"Letter of Credit Commitment" shall mean the several obligations of
the Issuing Banks to issue Letters of Credit in an aggregate face amount from
time to time not to exceed the lesser of (a) $5,000,000 and (b) the Revolving
Loan Commitment.
"Letter of Credit Obligations" shall mean, at any time, the sum of (a)
an amount equal to the aggregate undrawn and unexpired amount (including the
amount to which any such Letter of Credit can be reinstated pursuant to the
terms hereof) of the then outstanding Letters of Credit and (b) an amount equal
to the aggregate drawn, but unreimbursed drawings of any Letters of Credit.
"Letter of Credit Reserve Account" shall mean any account maintained
by the Administrative Agent for the benefit of any Issuing Bank, the proceeds
of which shall be applied as provided in Section 8.2(e) hereof.
"Letters of Credit" shall mean letters of credit issued to support
obligations of the Borrowers in the ordinary course of its business issued by
an Issuing Bank on behalf of the Borrowers from time to time in accordance with
Section 2.16 hereof.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge agreement, assignment, charge, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment, or
other encumbrance of any kind in respect of such property, whether or not
xxxxxx, vested, or perfected.
"Loan Account" shall have the meaning set forth in Section 2.7 hereof.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, the Fee Letters, all Requests for Advance, all Borrowing Base
Certificates, Interest Hedge Agreements between the Borrowers, on the one hand,
and the Administrative Agent (or an affiliate of the Administrative Agent), one
or more of the Issuing Banks (or an affiliate of an Issuing Bank) or one or
more of the Lenders (or an affiliate of a Lender), on the other hand, and all
other documents, instruments, certificates, side letter agreements, and
agreements executed or delivered in connection with or contemplated by this
Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Lenders
to the Borrowers under the Commitments, not to exceed the amount of the
Commitments, and evidenced by the Notes, and shall include the Revolving Loans,
the Tranche A Loan and the Tranche B Loan.
14
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations T, U and X (12 C.R.F. Parts 221 and 224) of the Board.
"Materially Adverse Effect" shall mean any materially adverse effect
upon (a) the business, assets, liabilities, condition (financial or otherwise),
or results of operations of the Borrowers and their Subsidiaries taken as a
whole, (b) the Collateral, (c) the ability of the Borrowers and their
Subsidiaries taken as a whole to perform under this Agreement or any other Loan
Document, or (d) the rights, benefits or interests of the Administrative Agent,
the Issuing Banks or the Lenders in or to this Agreement, any other Loan
Document or the Collateral, in each case, resulting from any act, omission,
situation, status, event, or undertaking, either singly or taken together.
"Maturity Date" shall mean September 30, 2003, or such earlier date as
payment of the Loans shall be due (whether by acceleration or otherwise) in
accordance with the terms hereof.
"Maximum Borrower Liability" shall have the meaning assigned thereto
in Section 2.14(a) hereof.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all material authorizations,
consents, permits, approvals, licenses, and exemptions from, and all filings
and registrations with, and all reports to, any Governmental Authority whether
federal, state, local, and all agencies thereof, which are required for the
conduct of the businesses and the ownership (or lease) of the properties and
assets of the Borrowers and the sale of their Inventory.
"Net Cash Proceeds" shall mean, with respect to any sale, lease,
transfer or other disposition of assets by any Borrower or any issuance by any
Borrower of any Capital Stock or the incurrence by any Borrower of any Funded
Debt (other than the Obligations), the aggregate amount of cash received for
such assets or Capital Stock, or as a result of such Funded Debt, net of (i)
reasonable and customary transaction costs, (ii) taxes, in each case properly
attributable to such transaction and payable by such Borrower or its
shareholders in connection with such sale, lease, transfer or other disposition
of assets or the issuance of any Capital Stock or the incurrence of any Funded
Debt, including, without limitation, sales commissions and underwriting
discounts payable to Persons who are not Affiliates of any Borrower, and (iii)
in the case of a sale, transfer or other disposition of assets, net of all
payments required to be made by the Borrowers as a result of such event to
repay Indebtedness (other than the Loans) secured by such asset.
"Net Worth" shall mean, as of any date and with respect to any Person,
such Person's total shareholders' equity (including Capital Stock, additional
paid-in capital and retained earnings, after deducting treasury stock) which
would appear as such on a balance sheet of such Person as of such date prepared
on a consolidated basis.
"Notes" shall mean, collectively, the Term Loan Notes and the
Revolving Loan Notes.
"Notice of Conversion/Continuation" shall mean a notice in
substantially the form of Exhibit E attached hereto.
15
"Obligations" shall mean (a) all payment and performance obligations
of each Borrower to the Lenders, the Issuing Banks and the Administrative Agent
under this Agreement and the other Loan Documents (including all Letters of
Credit Obligations and including any interest, fees and expenses that, but for
the provisions of the Bankruptcy Code, would have accrued), as they may be
amended from time to time, or as a result of making the Loans or issuing the
Letters of Credit, (b) the obligation to pay an amount equal to the amount of
any and all damages which the Administrative Agent, the Issuing Banks and the
Lenders, or any of them, may suffer by reason of a breach by any Borrower of
any obligation, covenant, or undertaking with respect to this Agreement or any
other Loan Document, and (c) any obligations of any Borrower to the
Administrative Agent (or an affiliate of the Administrative Agents) or any
Lender (or an affiliate of a Lender) under any Interest Hedge Agreement
permitted hereunder.
"Operating Income" shall mean for any period, the consolidated net
income (or deficit) from operations of the Parent and its Subsidiaries for such
period, determined in accordance with GAAP.
"Other Debtor Relief Law" shall have the meaning set forth in Section
2.14(a) hereof.
"Overadvance Amount" shall mean, at any time, the greater of (a) the
Aggregate Revolving Credit Obligations at such time minus the Borrowing Base at
such time, and (b) zero.
"Parent" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Parent Pledge Agreement" shall mean that certain Second Amended and
Restated Parent Pledge Agreement of even date herewith executed by the Parent
in favor of the Administrative Agent, in substantially the form attached hereto
as Exhibit F, pursuant to which the Parent pledges to the Administrative Agent,
for its benefit and for the benefit of the Issuing Banks and the Lenders, all
of the Capital Stock, whether now owned or hereafter acquired, of Bull Run, as
the same may be amended, restated, supplemented or otherwise modified from time
to time hereafter.
"Partnership Pledge Agreement" shall mean that certain Second Amended
and Restated Partnership Pledge Agreement of even date herewith executed by the
Xxxxxxxx-Xxxxxxx Partnership in favor of the Administrative Agent, in
substantially the form attached hereto as Exhibit G, pursuant to which the
Xxxxxxxx-Xxxxxxx Partnership pledges to the Administrative Agent, for its
benefit and for the benefit of the Issuing Banks and the Lenders, 1,284,000
shares of Capital Stock of the Parent, as the same may be amended, restated,
supplemented or otherwise modified from time to time hereafter.
"Payment Date" shall mean the last day of each Eurodollar Advance
Period for a Eurodollar Advance.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent, the
Issuing Banks or the Lenders given to secure the Obligations;
16
(b) Liens on real estate for real estate taxes not yet
delinquent and Liens for taxes, assessments, judgments, governmental charges or
levies, or claims (other than any Lien imposed pursuant to any of the
provisions of ERISA) not yet delinquent or the non-payment of which is being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves have been set aside on such Person's books, but only if such
Lien would not reasonably be expected to have a Materially Adverse Effect
either on the rights of the Administrative Agent, or the Administrative Agent's
Lien, in any of the Collateral;
(c) Liens of carriers, warehousemen, mechanics,
laborers, suppliers, workers and materialmen incurred in the ordinary course of
business for sums not yet due or being diligently contested in good faith, if
such reserve or appropriate provision, if any, as shall be required by GAAP
shall have been made therefor, but only if such Liens are junior in priority to
the Liens in favor of the Administrative Agent;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance or other types
of social security benefits;
(e) Easements, rights-of-way, restrictions, and other
similar encumbrances on the use of real property which in the reasonable
opinion of the Administrative Agent do not interfere with the ordinary conduct
of the business of such Person or materially affect the value of any
Collateral;
(f) Purchase money security interests and liens arising
in connection with Capitalized Lease Obligations provided that any such Lien
attaches only to the asset so purchased or leased by such Person and secures
only Indebtedness incurred by such Person in order to purchase or lease such
asset, but only to the extent permitted by Section 7.1(d) hereof;
(g) Deposits to secure the performance of bids, trade
contracts, tenders, sales, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(h) Liens on assets of the Borrowers existing on the
Agreement Date which are set forth on Schedule 2 attached hereto; and
(i) At any time after exercise of the Call Option and
payment of the Purchase Price (as defined in the Xxxxxxxx Guaranty), Liens in
favor of Xxxxxxxx with respect to the Call Option Collateral (as defined in the
Xxxxxxxx Guaranty).
"Person" shall mean an individual, corporation, partnership, trust,
joint stock company, limited liability company, unincorporated organization, or
a government or any agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other plan maintained for employees of any Person
or any Affiliate of such Person.
"Pledge Agreements" shall mean, collectively, the Borrower Pledge
Agreement, the Supplemental Borrower Pledge Agreement, the Purpose Credit
Borrower Pledge Agreement, the
17
Parent Pledge Agreement, the Partnership Pledge Agreement, the Subsidiary
Pledge Agreement, the Host Pledge Agreement and the Xxxxxxxx Pledge Agreement.
"Prior Credit Agreement" shall have the meaning ascribed to such term
in the Recitals to this Agreement.
"Property" shall mean any real property or personal property (tangible
or intangible), plant, building, facility, structure, underground storage tank
or unit, equipment, Inventory or other asset owned, leased or operated by any
Borrower or any Subsidiary of any Borrower (including, without limitation, any
surface water thereon or adjacent thereto, and soil and groundwater
thereunder).
"Purpose Credit Borrower Pledge Agreement" shall mean that certain
Second Amended and Restated Purpose Credit Borrower Pledge Agreement of even
date herewith executed by the Borrowers in favor of the Administrative Agent,
in substantially the form attached hereto as Exhibit H, pursuant to which each
of the Borrowers pledges to the Administrative Agent, for its benefit and for
the benefit of the Issuing Banks and the Lenders, the Tranche A Collateral, as
the same may be amended, restated, supplemented or otherwise modified from time
to time hereafter.
"Reimbursement Obligations" shall mean the payment obligations of the
Borrowers under Section 2.16(d) hereof.
"Replacement Event" shall have the meaning ascribed thereto in Section
10.16 hereof.
"Replacement Lender" shall have the meaning ascribed thereto in
Section 10.16 hereof.
"Reportable Event" shall have the meaning set forth in Section 4043(c)
of ERISA and the regulations thereunder, but shall not include any event which
is not subject to the thirty (30) day notice requirement of such regulations
other than 29 Code of Federal Regulations Sections 2615.11, 2615.12 and
2615.19.
"Request for Advance" shall mean any certificate signed by an
Authorized Signatory requesting on behalf of a Borrower an Advance hereunder
which will increase the aggregate amount of the Loans outstanding, which
certificate shall be denominated a "Request for Advance," and shall be in
substantially the form of Exhibit I attached hereto. Each Request for Advance
shall, among other things, specify the date of the Advance, which shall be a
Business Day, the amount of the Advance, and the type of Advance.
"Request for Issuance of Letter of Credit" shall mean any certificate
signed by an Authorized Signatory of a Borrower requesting that an Issuing Bank
issue a Letter of Credit hereunder, which certificate shall be in substantially
the form of Exhibit J attached hereto, and shall, among other things, specify
(a) the stated amount of the Letter of Credit (which shall be in United States
Dollars), (b) the effective date (which shall be a Business Day) for the
issuance of such Letter of Credit, (c) the date on which such Letter of Credit
is to expire (which shall be a Business Day and which shall be subject to
Section 2.16(a) hereof), (d) the Person for whose benefit such Letter of Credit
is to be issued, (d) other relevant terms of such Letter of Credit, and
18
(f) the Available Letter of Credit Amount as of the scheduled date of issuance
of such Letter of Credit.
"Restricted Payment" shall mean (a) Dividends, (b) any payment of
management, consulting or similar fees payable by any Borrower or any
Subsidiary of any Borrower to any Affiliate, excluding payments made to any
other Borrower, (c) any direct or indirect payment to any Person on account of
the Indebtedness evidenced by the Summit Subordinated Notes or on account of
any other subordinated Indebtedness, and (d) payment or other distribution made
by any Borrower or any Subsidiary of any Borrower to the Parent, including,
without limitation, any such payment or other distribution to the Parent for
the purpose of making any payment (including any payment of principal or
interest) on the Subordinated Debt.
"Restricted Purchase" shall mean any payment on account of the
purchase, redemption, or other acquisition or retirement of any shares of
Capital Stock of any Borrower or any Subsidiary of any Borrower or of the
Parent.
"Revolving Commitment Ratios" shall mean the percentages in which the
Lenders are severally bound to make Advances to the Borrowers under the
Revolving Loan Commitment, which, as of the Agreement Date, are set forth
(together with dollar amounts thereof) on Schedule 1 attached hereto.
"Revolving Loan Commitment" shall mean the several obligations of the
Lenders to advance to the Borrowers $20,000,000, on and after the Agreement
Date, in accordance with their respective Revolving Commitment Ratios, pursuant
to the terms hereof, and as such amount may be reduced from time to time,
pursuant to the terms hereof. Each reference to the Revolving Loan Commitment
contained in this Agreement shall be deemed to refer to the Revolving Loan
Commitment then in effect.
"Revolving Loan Notes" shall mean those certain amended and restated
promissory notes of even date in the aggregate principal amount of $20,000,000,
issued by the Borrowers to each of the Lenders and substantially in the form of
Exhibit K attached hereto, and any extensions, renewals or amendments to, or
replacements of, the foregoing.
"Revolving Loans" shall mean, collectively, the amounts advanced from
time to time by the Lenders to the Borrowers under the Revolving Loan
Commitment, not to exceed the amount of the Revolving Loan Commitment, and
evidenced by the Revolving Loan Notes.
"Xxxxxxxx" shall mean J. Xxxx Xxxxxxxx, a Georgia resident, and his
heirs, legal representatives, successors and assigns.
"Xxxxxxxx Affiliates" shall mean the Xxxxxxxx-Xxxxxxx Partnership and
those other Persons set forth on Schedule 4.1(d) under the heading "Capital
Stock of the Parent owned by Xxxxxxxx and Xxxxxxxx Affiliates."
"Xxxxxxxx Collateral Event" shall mean any period during which the
current market value of the marketable securities pledged by Xxxxxxxx pursuant
to the Xxxxxxxx Pledge Agreement shall be equal to or greater than 120% of the
sum of (a) the then outstanding Term Loans plus (b) the Revolving Loan
Commitment in effect at such time, such value to be
19
determined by the price of such marketable securities at the close of business
on the New York Stock Exchange (or such other exchange on which such marketable
securities are listed) on the Business Day prior to the date each Xxxxxxxx
Notice is delivered (pursuant to the first and third sentence of Section 6.6(e)
hereof) or due (pursuant to the second sentence of Section 6.6(e) hereof), or on
any date upon which the Administrative Agent calculates, in its sole discretion,
the value thereof. Such period shall be deemed to begin on the Business Day that
the Administrative Agent receives a Xxxxxxxx Notice pursuant to the first
sentence of Section 6.6(e) hereof. Any Xxxxxxxx Collateral Event shall be deemed
to continue until the earlier of (i) the receipt by the Administrative Agent of
a Xxxxxxxx Notice pursuant to the third sentence of Section 6.6(e) hereof, (ii)
the non-receipt by the Administrative Agent of any monthly Xxxxxxxx Notice
required pursuant to the second sentence of Section 6.6(e) hereof and (iii) a
determination by the Administrative Agent, in its sole discretion, that the
conditions set forth in this definition are no longer being satisfied.
"Xxxxxxxx Compensation Amount" shall mean the amount of any non-cash
compensation, in the form of shares of common stock of the Parent, paid to
Xxxxxxxx in exchange for the Xxxxxxxx Guaranty.
"Xxxxxxxx Guaranty" shall mean that certain Second Amended and Restated
Guaranty and Call Agreement of even date herewith between Xxxxxxxx and the
Administrative Agent, on its behalf, and on behalf of the Lenders and the
Issuing Banks, substantially in the form of Exhibit L attached hereto, as the
same may be amended, restated, supplemented or otherwise modified from time to
time hereafter.
"Xxxxxxxx Notice" shall mean any notice delivered by Xxxxxxxx or any
Borrower to the Administrative Agent in connection with a Xxxxxxxx Collateral
Event. Each such notice shall be accompanied by valuation calculations in
connection with the relevant Xxxxxxxx Collateral Event in form and detail
satisfactory to the Administrative Agent.
"Xxxxxxxx Pledge Agreement" shall mean that certain Second Amended and
Restated Xxxxxxxx Pledge Agreement of even date herewith executed by Xxxxxxxx in
favor of the Administrative Agent, substantially in the form of Exhibit M
attached hereto, pursuant to which Xxxxxxxx pledges to the Administrative Agent,
for its benefit and for the benefit of the Issuing Banks and the Lenders the
shares of Capital Stock set forth on Schedule 1 thereto, and such other shares
of Capital Stock as may be required by the terms thereof, as the same may be
amended, restated, supplemented or otherwise modified from time to time
hereafter.
"Security Agreement" shall mean that certain Second Amended and
Restated Security Agreement of even date herewith among the Borrowers and the
Administrative Agent, on its behalf and on behalf of the Lenders and the Issuing
Banks, substantially in the form of Exhibit N hereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time
hereafter.
"Security Documents" shall mean, collectively, the Security Agreement,
the Subsidiary Security Agreement, the Trademark Security Agreement, the Pledge
Agreements, the Assignment of Note, all UCC-1 financing statements and any other
document, instrument or
20
agreement granting Collateral for the Obligations, as the same may be amended,
restated, supplemented or otherwise modified from time to time hereafter.
"Subordinated Debt" shall mean Indebtedness evidenced by the
Subordinated Note.
"Subordinated Note" shall mean, collectively, those certain
Subordinated Notes dated as of December 17, 1999, issued by the Parent in favor
of the former shareholders of Host and Capital identified on Schedule 3, in the
original principal amounts as listed on Schedule 3, not to exceed $20,000,000 in
the aggregate, and the agreements, instruments and documents related thereto.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which fifty percent (50%) or more of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which fifty percent (50%) or more of
the outstanding partnership or limited liability company interests having
ordinary voting power to elect the general partner or a majority of the
managers, members or other governing board, regardless of the existence at the
time of a right of the holders of any class or classes of securities of such
entity to exercise such voting power by reason of the happening of any
contingency is at the time owned by such Person, or by one or more Subsidiaries
of such Person, or by such Person and one or more Subsidiaries of such Person,
and (b) any other entity which is controlled or capable of being controlled by
such Person, or by one or more Subsidiaries of such Person, or by such Person
and one or more Subsidiaries of such Person. Notwithstanding anything to the
contrary contained herein, Players Communication Network, LLC, shall not
constitute a Subsidiary of the Parent or any Borrower for purposes of this
Agreement and the other Loan Documents.
"Subsidiary Guaranty" shall mean that certain Second Amended and
Restated Subsidiary Guaranty among certain direct and indirect Subsidiaries of
the Borrowers (other than foreign Subsidiaries) and the Administrative Agent, on
its behalf, and on behalf of the Lenders and the Issuing Banks, substantially in
the form of Exhibit O attached hereto, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Subsidiary Pledge Agreement" shall mean any Subsidiary Pledge
Agreement executed by direct or indirect Subsidiaries of the Borrowers (other
than foreign Subsidiaries) having any Subsidiaries in favor of the
Administrative Agent, in substantially the form attached hereto as Exhibit P,
pursuant to which each of such Subsidiaries shall pledge to the Administrative
Agent, for its benefit and for the benefit of the Issuing Banks and the Lenders,
all of the Capital Stock, whether now owned or hereafter acquired, of its
Subsidiaries (and, with respect to any wholly-owned foreign Subsidiary, 65% of
such Capital Stock), as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Subsidiary Security Agreement" shall mean that certain Second Amended
and Restated Subsidiary Security Agreement among certain direct and indirect
Subsidiaries of the Borrowers (other than foreign Subsidiaries) and the
Administrative Agent, on its behalf and on behalf of the
21
Lenders and the Issuing Banks, substantially in the form of Exhibit Q hereto, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"Summit Payment" shall mean the payment of the final $590,000 principal
payment due under the Summit Subordinated Notes on or before September 30, 2002,
such payment to be made from the proceeds of Capital Stock or other forms of
capital junior in payment to the Lenders and upon terms acceptable to the
Lenders.
"Summit Subordinated Notes" shall mean, collectively, (i) that certain
Promissory Note issued by Streetball Partners International, Inc. in favor of
Xxxx Xxxxxxx in an original principal amount of $590,000, and (ii) that certain
Promissory Note issued by Streetball Partners International, Inc., in favor of
Xxx Xxxxxx in an original principal amount of $590,000, and the agreements,
instruments and documents related to each of such Promissory Notes.
"Supplemental Borrower Pledge Agreement" shall mean that certain
Supplemental Borrower Pledge Agreement of even date herewith executed by the
Borrowers in favor of the Administrative Agent, in substantially the form
attached hereto as Exhibit A-2, pursuant to which each of the Borrowers pledges
to the Administrative Agent, for its benefit and for the benefit of the Issuing
Banks and the Lenders, the Tranche A Collateral.
"Term Commitment Ratios" shall mean the percentages in which the
Lenders are severally bound to make Advances to the Borrowers under the Term
Loan Commitment, which, as of the Agreement Date, are set forth (together with
dollar amounts thereof) on Schedule 1 attached hereto.
"Term Loan Commitments" shall mean, collectively, the Tranche A Loan
Commitment and the Tranche B Loan Commitment.
"Term Loan Obligations" shall mean, collectively, any and all
Obligations of the Borrowers to pay to the Administrative Agent and the Lenders
the principal of, interest or fees on, collection costs for, or any other sums
owing in respect of the Term Loans or the Term Loan Notes.
"Term Loan Notes" shall mean, collectively, the Tranche A Loan Notes
and the Tranche B Loan Notes.
"Term Loans" shall mean, collectively, the Tranche A Loan and the
Tranche B Loan.
"Trademark Security Agreement" shall mean, collectively, any Trademark
Security Agreement among the Borrowers or any Subsidiaries of the Borrowers and
the Administrative Agent, on its behalf and on behalf of the Issuing Banks and
the Lenders, substantially in the form of Exhibit R, as any such agreement shall
be modified, amended or restated from time to time hereafter.
"Tranche A Collateral" shall mean the collateral pledged to the
Administrative Agent for the benefit of itself, the Issuing Banks and the
Lenders pursuant to the Purpose Credit Borrower Pledge Agreement and the
Supplemental Borrower Pledge Agreement.
22
"Tranche A Loan" shall mean, collectively, the amounts advanced by the
Lenders to the Borrowers under the Tranche A Loan Commitment, not to exceed the
amount of the Tranche A Loan Commitment, and evidenced by the Tranche A Loan
Notes.
"Tranche A Loan Commitment" shall mean the several obligations of the
Lenders to advance the sum of $21,447,106.25, in accordance with their
respective Term Commitment Ratios, to the Borrowers pursuant to the terms
hereof.
"Tranche A Loan Notes" shall mean those certain Tranche A Promissory
Notes of even date herewith in the aggregate principal amount of $21,447,106.25,
in substantially the form of Exhibit S attached hereto, and any amendments,
replacements, extensions or renewals thereof.
"Tranche A Loan Obligations" shall mean, collectively, any and all
Obligations of the Borrowers to pay to the Administrative Agent and the Lenders
the principal of, interest or fees on, collection costs for, or any other sums
owing in respect of the Tranche A Loan or the Tranche A Loan Notes.
"Tranche B Loan" shall mean, collectively, the amounts advanced by the
Lenders to the Borrowers under the Tranche B Loan Commitment, not to exceed the
amount of the Tranche B Loan Commitment, and evidenced by the Tranche B Loan
Notes.
"Tranche B Loan Commitment" shall mean the several obligations of the
Lenders to advance the sum of $52,484,589.19, in accordance with their
respective Term Commitment Ratios, to the Borrowers pursuant to the terms
hereof.
"Tranche B Loan Notes" shall mean those certain Tranche B Promissory
Notes of even date herewith in the aggregate principal amount of $52,484,589.19,
in substantially the form of Exhibit T attached hereto, and any amendments,
replacements, extensions or renewals thereof.
"Uniform Customs" shall mean the Uniform Customs and Practice for
Documentary Credits (1994 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
Each definition of an agreement in this Article 1 shall include such
instrument or agreement as modified, amended, supplemented or otherwise modified
from time to time with, if required, the prior written consent of all of the
Lenders, except as provided in Section 10.12 hereof, and except where the
context otherwise requires, definitions imparting the singular shall include the
plural and vice versa. Except where otherwise specifically restricted, reference
to a party to a Loan Document includes that party and its successors and
assigns. An Event of Default shall "exist", "continue" or be "continuing" until
such Event of Default has been waived in writing in accordance with Section
10.12 hereof. All terms used herein which are defined in Article 9 of the
Uniform Commercial Code in effect in the State of Georgia on the date hereof and
which are not otherwise defined herein shall have the same meanings herein as
set forth therein. All accounting terms used herein without definition shall be
used as defined under GAAP. All financial calculations hereunder shall, unless
otherwise stated, be determined for the Parent on a consolidated basis with its
Subsidiaries.
23
ARTICLE 2
THE LOANS, THE LETTERS OF CREDIT AND THE GUARANTY
Section 2.1 Extension of Credit. Subject to the terms and conditions
of, and in reliance upon the representations and warranties made in, this
Agreement and the other Loan Documents, the Lenders have extended and agree,
severally in accordance with their respective Revolving Commitment Ratios and
Term Commitment Ratios, and not jointly, to extend credit to the Borrowers in an
aggregate principal amount not to exceed $93,931,695.44.
(a) The Revolving Loans. The Lenders agree, severally in
accordance with their respective Revolving Commitment Ratios and not
jointly, upon the terms and subject to the conditions of this
Agreement, to lend and relend to the Borrowers, prior to the Maturity
Date, principal amounts which in the aggregate at any one time
outstanding do not exceed the Available Revolving Loan Commitment.
Subject to the terms and conditions hereof and prior to the Maturity
Date, Advances under the Revolving Loan Commitment may be repaid and
reborrowed from time to time on a revolving basis.
(b) The Tranche A Loan. The Lenders have made, severally
in accordance with their respective Term Commitment Ratios and not
jointly, upon the terms and subject to the conditions of this
Agreement, Tranche A Loans to the Borrowers in an aggregate principal
amount equal to the Tranche A Loan Commitment. After the Agreement
Date, Loans under the Tranche A Loan Commitment may be continued or
converted pursuant to a Notice of Conversion/Continuation as provided
in Section 2.2(b)(ii) and Section 2.2(c)(ii) below in order to reborrow
Base Rate Advances or Eurodollar Advances for new Eurodollar Advance
Periods; provided, however, there shall be no increase in the aggregate
principal amount outstanding under the Tranche A Loan Commitment at any
time after the Agreement Date.
(c) The Tranche B Loan. The Lenders have made, severally
in accordance with their respective Term Commitment Ratios relating to
the Tranche B Loan Commitment and not jointly, upon the terms and
subject to the conditions of this Agreement, Tranche B Loans to the
Borrowers in an aggregate principal amount equal to the Tranche B Loan
Commitment. After the Agreement Date, Loans under the Tranche B Loan
Commitment may be continued or converted pursuant to a Notice of
Conversion/Continuation as provided in Section 2.2(b)(ii) and Section
2.2(c)(ii) below in order to reborrow Base Rate Advances or Eurodollar
Advances for new Eurodollar Advance Periods; provided, however, there
shall be no increase in the aggregate principal amount outstanding
under the Tranche B Loan Commitment at any time after the Agreement
Date.
(d) The Letters of Credit. Subject to the terms and
conditions hereof, each Issuing Bank agrees to issue Letters of Credit
for the account of the Borrowers pursuant to Section 2.16 hereof in an
aggregate outstanding face amount for all Issuing Banks, not to exceed
the Letter of Credit Commitment at any time.
24
Section 2.2 Manner of Borrowing and Disbursement of Loans.
(a) Choice of Interest Rate, etc. Any Advance shall, at the option
of the Borrowers, be made either as a Base Rate Advance or as a Eurodollar
Advance (except for the first two (2) Business Days after the Agreement Date,
during which period the Loans shall bear interest as a Base Rate Advance);
provided, however, that (i) if the Borrowers fail to give the Administrative
Agent written notice specifying whether a Eurodollar Advance is
to be repaid, continued or converted on a Payment Date, such Eurodollar Advance
shall be converted to a Base Rate Advance on the Payment Date, and (ii) the
Borrowers may not select a Eurodollar Advance (A) with respect to an Advance,
the proceeds of which are to reimburse an Issuing Bank pursuant to Section 2.16
hereof, or (B) if, at the time of such Advance, a Default or an Event of Default
has occurred and is continuing. Any notice given to the Administrative Agent in
connection with a requested Advance hereunder shall be given to the
Administrative Agent prior to 11:00 a.m. (Eastern time) in order for such
Business Day to count toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Initial and Subsequent Advances. A Borrower shall
give the Administrative Agent, in the case of Base Rate Advances, not
later than 11:00 a.m. (Eastern time) on the Business Day of a proposed
Advance, irrevocable prior notice by telephone or telecopy and shall
confirm any such telephone notice with a written Request for Advance;
provided, however, that the failure by a Borrower to confirm any notice
by telephone or telecopy with a Request for Advance shall not
invalidate any notice so given.
(ii) Repayments and Conversions. A Borrower may (a) at any
time repay or prepay a Base Rate Advance, or (b) upon at least three
(3) Business Days' irrevocable prior written notice to the
Administrative Agent in the form of a Notice of
Conversion/Continuation, convert all or a portion of the principal
thereof to one or more Eurodollar Advances. Upon the date indicated by
such Borrower, such Base Rate Advance shall be so repaid or converted,
as applicable.
(iii) Miscellaneous. Notwithstanding any term or provision
of this Agreement which may be construed to the contrary, each Base
Rate Advance shall be in a principal amount of no less than $100,000
and in an integral multiple of $50,000 in excess thereof.
(c) Eurodollar Advances.
(i) Initial and Subsequent Advances. A Borrower shall
give the Administrative Agent in the case of Eurodollar Advances at
least three (3) Business Days' irrevocable prior notice by telephone or
telecopy and shall immediately confirm any such telephone notice with a
written Request for Advance; provided, however, that the failure by a
Borrower to confirm any notice
25
by telephone or telecopy with a Request for Advance shall not
invalidate any notice so given.
(ii) Repayments, Continuations and Conversions. At least
three (3) Business Days prior to each Payment Date for a Eurodollar
Advance, a Borrower shall give the Administrative Agent written notice
in the form of a Notice of Continuation/Conversion specifying whether
all or a portion of any Eurodollar Advance outstanding on such Payment
Date (a) is to be continued in whole or in part as a new Eurodollar
Advance, in which case such notice shall also specify the Eurodollar
Advance Period which such Borrower shall have selected for such new
Eurodollar Advance, (b) is to be converted in whole or in part to a
Base Rate Advance, or (c) is to be repaid and not continued or
converted. Upon such Payment Date, such Eurodollar Advance will,
subject to the provisions hereof, be so repaid, continued or converted,
as applicable.
(iii) Miscellaneous. Notwithstanding any term or provision
of this Agreement which may be construed to the contrary, each
Eurodollar Advance shall be in a principal amount of no less than
$500,000 and in an integral multiple of $100,000 in excess thereof, and
at no time shall the aggregate number of all Eurodollar Advances then
outstanding exceed one (1) under each of the Revolving Loan Commitment,
the Tranche A Loan Commitment and the Tranche B Loan Commitment.
(d) Notification of Lenders. Upon receipt of a (i) Request for
Advance or a telephone or telecopy request for Advance, or (ii) notification
from an Issuing Bank that a draw has been made under any Letter of Credit, or
(iii) notice from a Borrower with respect to any outstanding Advance prior to
the Payment Date for such Advance, the Administrative Agent shall promptly
notify each Lender by telephone or telecopy of the contents thereof and the
amount of each Lender's portion of any such Advance. Each Lender shall, not
later than 12:00 noon (Eastern time) on the date specified for such Advance in
such notice, make available to the Administrative Agent at the Administrative
Agent's office, or at such account as the Administrative Agent shall designate,
the amount of such Lender's portion of the Advance in immediately available
funds.
(e) Disbursement. Prior to 1:00 p.m. (Eastern time) on the date of
an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse the
amounts made available to the Administrative Agent by the Lenders to the
Borrowers. Unless the Administrative Agent shall have received notice from a
Lender prior to 12:30 p.m. (Eastern time) on the date of any Advance that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such Advance, the Administrative Agent may assume that such Lender
has made or will make such portion available to the Administrative Agent on the
date of such Advance and the Administrative Agent may, in its sole discretion
and in reliance upon such assumption, make available to the Borrowers on such
date a corresponding amount. If and to the extent such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender
agrees to repay to the
26
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrowers until the date such amount is repaid to the Administrative Agent,
at the Federal Funds Rate. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's portion of the applicable Advance for purposes of this Agreement and if
both such Lender and the Borrowers shall pay and repay such corresponding
amount, the Administrative Agent shall promptly relend to the Borrowers such
corresponding amount. If such Lender does not repay such corresponding amount
immediately upon the Administrative Agent's demand therefor, the Administrative
Agent shall notify the Borrowers and the Borrowers shall immediately pay such
corresponding amount to the Administrative Agent. The failure of any Lender to
fund its portion of any Advance shall not relieve any other Lender of its
obligation, if any, hereunder to fund its respective portion of the Advance on
the date of such borrowing, but no Lender shall be responsible for any such
failure of any other Lender. In the event that a Lender for any reason fails or
refuses to fund its portion of an Advance in violation of this Agreement, then,
until such time as such Lender has funded its portion of such Advance, or all
other Lenders have received payment in full (whether by repayment or prepayment)
of the principal and interest due in respect of such Advance, such non-funding
Lender shall (i) have no right to vote regarding any issue on which voting is
required or advisable under this Agreement or any other Loan Document, and such
non-funding Lender's Aggregate Commitment Ratios shall be excluded from the
calculation of the required percentages for the definition of Majority Lenders,
and (ii) shall not be entitled to receive any payments of principal, interest or
fees from the Administrative Agent (or the other Lenders) in respect of its
Loans.
(f) Deemed Request for Advance. Unless payment is otherwise timely
made by the Borrowers, the becoming due of any amount required to be paid under
this Agreement or any of the other Loan Documents as principal, accrued
interest, fees or other charges shall be deemed irrevocably to be a Request for
Advance on the due date of, and in an aggregate amount required to pay, such
principal, accrued interest, fees or other charges, and the proceeds of a
Revolving Loan made pursuant thereto may be dispersed by way of direct payment
of the relevant Obligation and shall bear interest as a Base Rate Advance. The
Administrative Agent and the Lenders shall have no obligation to any of the
Borrowers to honor any deemed Request for Advance, but may do so in their sole
discretion and without regard to the existence of, and without being deemed to
have waived, any Default or Event of Default.
Section 2.3 Interest.
(a) On Loans. Interest on Advances under the Revolving Loans and
interest on the Term Loans, subject to Section 2.3(b) and (c) hereof, shall be
payable as follows:
(i) On Base Rate Advances. Interest on each Base Rate
Advance shall be computed for the actual number of days elapsed on the
basis of a hypothetical year of 360 days and shall be payable monthly
in arrears on the first day of each month for the prior month. Interest
on Base Rate Advances then outstanding shall
27
also be due and payable on the Maturity Date. Interest shall accrue and
be payable on each Base Rate Advance made with respect to the Revolving
Loans and the Term Loans at the simple per annum interest rate equal to
the sum of (i) the Base Rate, plus (ii) the applicable Interest Rate
Margin.
(ii) On Eurodollar Advances. Interest on each Eurodollar
Advance shall be computed on the basis of a hypothetical 360-day year
for the actual number of days elapsed and shall be payable in arrears
on (x) the Payment Date for such Advance, and (y) if the Eurodollar
Advance Period for such Advance is greater than one (1) months, on each
one (1) month anniversary of such Advance. Interest on Eurodollar
Advances then outstanding shall also be due and payable on the Maturity
Date. Interest shall accrue and be payable on each Eurodollar Advance
made with respect to the Revolving Loans and the Term Loans at a rate
per annum equal to the sum of (i) the Eurodollar Basis applicable to
such Eurodollar Advance, and (ii) the applicable Interest Rate Margin.
(iii) If No Notice of Selection of Interest Rate. If a
Borrower fails to give the Administrative Agent timely notice of the
selection of a Eurodollar Basis, or if the Administrative Agent is
unable to timely determine a Eurodollar Basis for any Advance, the Base
Rate shall apply to such Advance. If a Borrower fails to elect to
reborrow any Eurodollar Advance then outstanding prior to the last
Payment Date applicable thereto in accordance with the provisions of
Section 2.2 hereof, as applicable, the Base Rate shall apply to such
Advance commencing on and after such Payment Date.
(b) Intentionally Omitted.
(c) Upon Default. Upon the occurrence of an Event of Default,
interest on the outstanding Obligations shall accrue at the Default Rate from
the date of such Event of Default. Interest accruing at the Default Rate shall
be payable on demand and in any event on the Maturity Date and shall accrue
until the earliest to occur of (i) waiver of the applicable Event of Default in
accordance with Section 10.12 hereof, (ii) agreement by all of the Lenders to
rescind the charging of interest at the Default Rate, or (iii) payment in full
of the Obligations. The Lenders shall not be required to (i) accelerate the
maturity of the Loans, (ii) terminate the Commitments, or (iii) exercise any
other rights or remedies under the Loan Documents in order to charge interest
hereunder at the Default Rate.
(d) Computation of Interest. In computing interest on any Advance,
the date of making the Advance shall be included and the date of payment shall
be excluded; provided, however, that if an Advance is repaid on the date that it
is made, one (1) day's interest shall be due with respect to such Advance.
Section 2.4 Fees.
(a) Fee Letter. The Borrowers, jointly and severally, agree to pay
to the Administrative Agent and the Lenders such fees as are set forth in the
Fee Letters.
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(b) Unused Line Fee. The Borrowers, jointly and severally, agree
to pay to the Administrative Agent for the account of the Lenders, in accordance
with the Lenders' Revolving Commitment Ratios, an unused line fee on the amount
of the Available Revolving Loan Commitment then in effect for each day from the
Agreement Date through the Maturity Date (or the date of any earlier prepayment
in full of the Obligations), at a rate of one-quarter of one percent (0.25%) per
annum. Such unused line fee shall be computed on the basis of a hypothetical
year of 360 days for the actual number of days elapsed, shall be payable
quarterly in arrears for each fiscal quarter on the first (1st) day of each
fiscal quarter for the immediately preceding fiscal quarter, and if then unpaid,
on the Maturity Date (or the date of any earlier prepayment in full of the
Obligations), and shall be fully earned when due and non-refundable when paid.
(c) Letter of Credit Fees.
(i) The Borrowers shall pay to the Lenders, in accordance
with the Lenders' respective Revolving Commitment Ratios, a fee on the
stated amount of any outstanding Letters of Credit for each day from
the Date of Issue through the expiration date of each Letter of Credit
(or the date of any earlier prepayment in full of the Obligations) at a
rate per annum on the amount of the Letter of Credit Obligations equal
to the applicable Interest Rate Margin. Such Letter of Credit fee shall
be computed on the basis of a hypothetical year of 360 days for the
actual number of days elapsed, shall be payable quarterly in arrears
for each fiscal quarter on the first day of each quarter for the
immediately preceding calendar quarter, and if then unpaid, on the
Maturity Date (or the date of any earlier prepayment in full of the
Obligations), and shall be fully earned when due and non-refundable
when paid.
(ii) The Borrowers shall also pay to each Issuing Bank (A)
a fee on the stated amount of each Letter of Credit issued by such
Issuing Bank for each day from the Date of Issue through the expiration
date of each such Letter of Credit (or any earlier prepayment in full
of the Obligations) at a rate of one-eighth of one percent (0.125%) per
annum, which fee shall be computed on the basis of a hypothetical year
of 360 days for the actual number of days elapsed, shall be payable
quarterly in arrears on the first day of each fiscal quarter for the
immediately preceding fiscal quarter, and, if unpaid on the Maturity
Date (or any earlier prepayment in full of the Obligations) and (B) any
customary fees charged by the Issuing Banks for issuance and
administration of such Letters of Credit. The foregoing fees shall be
fully earned when due, and non-refundable when paid.
(d) Overadvance Fee. The Borrowers, jointly and
severally, agree to pay to the Lenders (except during the period of any
Xxxxxxxx Collateral Event), in accordance with the Lenders' respective
Revolving Commitment Ratio, a fee on the amount of the average
outstanding daily Overadvance Amount at a rate of two percent (2%) per
annum. Such fee shall be computed on the basis of a hypothetical year
of 360 days for the actual number of days elapsed, shall be payable
monthly in arrears twenty (20) days after the end of each month in
which such fees are accrued, and shall be fully earned when due and
non-refundable when paid.
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Section 2.5 Prepayment/Reduction of Commitment.
(a) The principal amount of any Base Rate Advance may be prepaid
in full or in part at any time, without penalty, and without notice, and the
principal amount of any Eurodollar Advance may be prepaid prior to the
applicable Payment Date, upon three (3) Business Days' prior written notice to
the Administrative Agent, provided that the Borrowers shall reimburse the
Lenders and the Administrative Agent, on the earlier of demand or the Maturity
Date, for any loss or out-of-pocket expense incurred by the Lenders or the
Administrative Agent in connection with such prepayment, as set forth in Section
2.9 hereof. Each notice of prepayment shall be irrevocable, and each such
prepayment shall include the accrued interest on the amount so prepaid. Upon
receipt of any notice of prepayment or, in the case of Base Rate Advances, the
receipt of such payment, the Administrative Agent shall promptly notify each
Lender of the contents thereof by telephone or telecopy and of such Lender's
portion of the prepayment. Other than with respect to amounts required to be
applied to the Loans pursuant to Section 2.6(c) hereof, prepayments of principal
hereunder shall be in minimum amounts of $500,000 and integral multiples of
$100,000 in excess thereof. Each such prepayment of Advances outstanding under
the Term Loans shall be applied, on a pro rata bass, first, to the amount of
principal payments due under Section 2.6(c) hereof, and, second, to the
remaining Advances outstanding thereunder. Any prepayment of Advances
outstanding under the Revolving Loan Commitment shall not reduce the Revolving
Loan Commitment.
(b) The Borrowers shall have the right, at any time and from time
to time after the Agreement Date and prior to the Maturity Date, upon at least
five (5) Business Days' prior written notice to the Administrative Agent,
without premium or penalty except as may be set forth herein, to cancel or
reduce permanently all or a portion of the Revolving Loan Commitment on a pro
rata basis among the Lenders in accordance with the Revolving Commitment Ratios,
provided that any such partial reduction shall be made in an amount not less
than $1,000,000 and in integral multiples of $500,000 in excess thereof. As of
the date of cancellation or reduction set forth in such notice, the Revolving
Loan Commitment shall be permanently reduced to the amount stated in the
Borrowers' notice for all purposes herein, and the Borrowers shall pay to the
Administrative Agent for the account of the Lenders the amount necessary to
reduce the principal amount of the Revolving Loans then outstanding to not more
than the amount of the Revolving Loan Commitment as so reduced, together with
accrued interest on the amount so prepaid and the unused line fee set forth in
Section 2.4(b) accrued through the date of the reduction with respect to the
amount reduced, and shall reimburse the Administrative Agent and the Lenders for
any loss or out-of-pocket expense incurred by any of them in connection with
such payment as set forth in Section 2.9.
Section 2.6 Repayment.
(a) Intentionally Omitted.
(b) The Revolving Loans. All unpaid principal and accrued interest
on the Revolving Loans shall be due and payable in full on the Maturity Date.
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(c) The Term Loans. As of the dates set forth below, the aggregate
amount of all payments of the outstanding principal balance of the Term Loans
made after the Agreement Date shall be equal to or greater than the amounts as
set forth below for such dates:
Minimum Aggregate Prepayment
Date Amount
------------------------------------- ---------------------------------------
January 15, 2003 $5,000,000
April 15, 2003 $5,000,000
July 15, 2003 $5,000,000
Additionally, the Term Loans shall be repaid as may be required by
Section 2.6(d) hereof. Any remaining unpaid principal and interest on the Term
Loans shall be due and payable in full on the Maturity Date. Any prepayments of
the Term Loans hereunder shall be applied on a pro rata basis to the payment of
the outstanding principal balance of the Term Loans.
(d) Other Mandatory Repayments; Reduction of Commitments.
(i) In the event that after the Agreement Date, the
Parent or any Borrower or any Subsidiary of any Borrower shall issue
any Capital Stock (other than in connection with the last sentence of
this Section 2.6(d)(i)), one hundred percent (100%) of the Net Cash
Proceeds received by the Parent, such Borrower or such Subsidiary from
such issuance shall be paid on the date of receipt thereof by the
Parent, such Borrower, or such Subsidiary to the Lenders as a mandatory
payment of the Loans. Subject to the provisions of Section 8.2(d)
hereof, the payment due hereunder shall be applied, on a pro rata
basis, to reduce the outstanding principal balance of the Term Loans,
and any surplus shall be applied to repay outstanding Revolving Loans.
Nothing in this Section shall authorize any Borrower to issue any
Capital Stock or incur any Funded Debt except as expressly permitted by
this Agreement. The Revolving Loan Commitment shall not be permanently
reduced by the amount of any payment of the Revolving Loans due under
this Section 2.6(d)(i). Notwithstanding the foregoing, the Parent or
any Borrower or any Subsidiary of any Borrower may issue any Capital
Stock in connection with any equity contribution or a series of equity
contributions, up to an aggregate amount of $12,500,000, less the
amount, if any, of subordinated Indebtedness outstanding pursuant to
Section 7.1(l) hereof occurring after the Agreement Date and prior to
Maturity Date, provided, that such Capital Stock does not permit early
redemption, acceleration or any payment of any obligations thereunder
(other than payment in Capital Stock of such Person) prior to six
months after the Maturity Date.
(ii) In the event any Borrower or any Subsidiary of any
Borrower shall sell any of its assets, including Collateral sold
pursuant to Section 7.7(b)(iii) hereof (other than (x) sales of
Inventory in the ordinary course of business, (y) sales of other assets
for a sales price of less than $250,000 in the aggregate during any
fiscal year, and (z) sales of obsolete equipment with a sale value not
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greater than $500,000 in the aggregate for all such assets that may be
sold during any year), one hundred percent (100%) of the Net Cash
Proceeds received by such Borrower or such Subsidiary from such sale
shall be paid on the date of receipt thereof by such Borrower as a
mandatory payment of the Loans. The Net Cash Proceeds shall be applied
to the Revolving Loans to the extent that such proceeds result from the
sale or loss of any asset which (a) has been replaced by a similar or
comparable asset purchased prior to the date of such sale, or (b) is
being replaced or will be replaced within one hundred eighty (180) days
after the receipt of such Net Cash Proceeds with an asset useful or
necessary in the business of the Borrowers; provided, however, that the
Borrowers shall (A) notify the Administrative Agent in writing on or
before the earlier of (I) the date the replacement asset is purchased
or (II) the date of applicable sale of its intention to replace the
asset to be sold or sold, as the case may be, and (B) (I) with respect
to any replacement asset purchased prior to the sale of the asset to be
replaced, notify the Administrative Agent in writing on or before the
180th day following the purchase of the replacement asset that the
asset to be replaced has been sold or (II) with respect to any asset
sold that is to be replaced, notify the Administrative Agent in writing
on or before the 180th day following such asset sale that the
replacement asset has been acquired. If (x) the Borrowers do not give
the requisite notice of its intention to replace the asset to be sold,
(y) the replacement asset has not been acquired within such one hundred
eighty (180) day period or (z) any excess Net Cash Proceeds exist after
payment on the Revolving Loans as provided above, then in each such
event the applicable Net Cash Proceeds shall be applied, first, on a
pro rata basis, to the outstanding principal amount of the Term Loans,
and the excess, if any, shall be applied to the principal on the
Revolving Loans then outstanding. In the event that the payment due
hereunder exceeds the Loans then outstanding, such amount received by
the Administrative Agent shall be applied to any other Obligations, and
any surplus shall be returned to the Borrowers. Nothing in this Section
shall authorize any Borrower to sell, lease, abandon, transfer, trade
or otherwise dispose of any assets except as expressly permitted by
this Agreement. The Revolving Loan Commitment shall not be permanently
reduced by the amount of any payment of the Revolving Loans due under
the second sentence of this Section 2.6(d)(ii), but will be permanently
reduced by the amount of any payment of the Revolving loans due under
the third sentence of this Section 2.6(d)(ii).
(iii) In the event that any Borrower makes the Summit
Payment, the Revolving Loan Commitment shall be permanently reduced by
the amount of the Summit Payment, and the Borrowers shall make a
permanent prepayment of the Revolving Loans in an amount equal to the
excess, if any, of the Aggregate Revolving Credit Obligations then
outstanding over the Revolving Loan Commitment.
(iv) In the event that Bull Run receives from the Parent
any proceeds from the E&Y Litigation pursuant to Section 5.22 hereof,
Bull Run shall make a mandatory prepayment of the Loans in the amount
of one hundred percent (100%)
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of the such proceeds, less any related reasonable fees and expenses in
connection therewith.
Section 2.7 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein, and shall be evidenced by the Notes. One each of
the Revolving Loan Notes shall be payable to the order of each Lender in
accordance with the respective Revolving Commitment Ratio of such Lender. One
each of the Tranche A Loan Notes and Tranche B Loan Notes shall be payable to
the order of each Lender in accordance with the respective Term Commitment Ratio
of such Lender. The Notes shall be issued by the Borrowers to the Lenders and
shall be duly executed and delivered by Authorized Signatories.
(b) The Administrative Agent shall open and maintain on its books
in the name of the Borrowers a loan account with respect to the Loans and
interest thereon (the "Loan Account"). The Administrative Agent shall debit such
Loan Account for the principal amount of each Advance made by it on behalf of
the Lenders, accrued interest thereon, and all other amounts which shall become
due from the Borrowers pursuant to this Agreement and shall credit the Loan
Account for each payment which the Borrowers shall make in respect to the
Obligations. The records of the Administrative Agent with respect to such Loan
Account shall be conclusive evidence of the Loans and accrued interest thereon,
absent manifest error.
Section 2.8 Manner of Payment.
(a) When Payments Due.
(i) Each payment (including any prepayment) by the
Borrowers on account of the principal of or interest on the Loans,
fees, and any other amount owed to the Lenders, the Issuing Banks or
the Administrative Agent under this Agreement, the Notes, or the other
Loan Documents shall be made not later than 1:00 p.m. (Eastern time) on
the date specified for payment under this Agreement or any other Loan
Document to the Administrative Agent at the Administrative Agent's
Office, for the account of the Lenders, the Issuing Banks or the
Administrative Agent, as the case may be, in lawful money of the United
States of America in immediately available funds. Any payment received
by the Administrative Agent after 1:00 p.m. (Eastern time) shall be
deemed received on the next Business Day; provided, however, that
payments received after 1:00 p.m. (Eastern time) but before 3:00 p.m.
(Eastern time) shall be deemed received on the next Business Day for
purposes of calculating interest but shall not give rise to an Event of
Default under Section 8.1(b) hereof. In the case of a payment for the
account of a Lender, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Lender. If the
Administrative Agent shall not have received any payment from the
Borrowers as and when due, the Administrative Agent will promptly
notify the Lenders accordingly.
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(ii) If any payment under this Agreement or any of the
Notes shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business
Day, and such extension of time shall in such case be included in
computing interest and fees, if any, in connection with such payment.
(b) No Deduction.
(i) The Borrowers, jointly and severally, agree to pay
principal, interest, fees, and all other amounts due hereunder or under
the Notes without set-off or counterclaim or any deduction whatsoever.
If any Borrower shall hereafter be required by law to deduct any taxes
from or in respect of any sum payable hereunder or under any Note to
any Lender, any Issuing Bank or the Administrative Agent, (A) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 2.8(b)), such Lender, Issuing Bank or the
Administrative Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (B)
the Borrowers shall make such deductions and (C) the Borrowers shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with Applicable Law.
(ii) Each Lender agrees to deliver to the Borrowers and
the Administrative Agent from time to time, a true and correct
certificate executed in duplicate by a duly authorized officer of such
Lender before or promptly upon the occurrence of any event requiring a
change in the most recent certificate previously delivered by it to the
Borrowers and the Administrative Agent pursuant to this Section 2.8(b).
The execution and delivery hereof by a Lender shall be deemed to be a
certification that such Lender falls within subsection (A) below, and
no further certificates need to be delivered by such Lender until the
occurrence of one of the events set forth in the preceding sentence.
Each certificate required to be delivered pursuant to this Section
2.8(b) shall certify as to one of the following:
(1) that such Lender shall continue to receive
payments hereunder without deduction or
withholding of United States federal income
tax;
(2) that such Lender cannot continue to receive
payments hereunder without deduction or
withholding of United States federal income
tax as specified therein but does not
require additional payments because it is
entitled to recover the full amount of any
such deduction or withholding from a source
other than the Borrowers or from a tax
credit or exemption; or
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(3) that such Lender is no longer capable of
receiving payments hereunder without
deduction or withholding of United States
federal income tax as specified therein by
reason of a change in law (including the
Code or applicable tax treaty) after the
later of the Agreement Date or the date on
which a Lender became a Lender pursuant to
Section 10.5 hereof and that it is not
capable of recovering the full amount of the
same from a source other than the Borrowers
or from a tax credit or exemption.
(c) Inadequate Payments. If on the date on which any
amount shall be due and payable by the Borrowers in regard to the
Obligations, the amount received by the Administrative Agent from the
Borrowers shall not be adequate to pay the amount which shall be so due
and payable, then the Administrative Agent shall be authorized, but
shall not be obligated, to make a Base Rate Advance under the Revolving
Loan Commitment on behalf of the Lenders to the Borrowers by crediting
the amount of such Base Rate Advance to the Loan Account thereof
pursuant to the provisions of Section 2.7(b) hereof, whereupon the
Administrative Agent shall debit the Loan Account hereof in a like
amount in payment of the part of the Obligations which shall then be
due and payable. No further authorization, direction or approval by the
Borrowers shall be required to be given by the Borrowers for the
Administrative Agent to take the action described in this Section
2.8(c).
Section 2.9 Reimbursement. Whenever any Lender shall sustain or
incur any losses or out-of-pocket expenses in connection with (i) failure by any
Borrower to borrow or continue any Eurodollar Advance, or convert any Advance to
a Eurodollar Advance, in each case, after having given notice of its intention
to borrow, continue or convert, as applicable, in accordance with Section 2.2
hereof (whether by reason of the election of any Borrower not to proceed or the
non-fulfillment of any of the conditions set forth in Article 3), or (ii)
prepayment of any Eurodollar Advance in whole or in part the Borrowers, jointly
and severally, agree to pay to such Lender, upon the earlier of such Lender's
demand or the Maturity Date, an amount sufficient to compensate such Lender for
all such losses and reasonable out-of-pocket expenses. Such Lender's good faith
determination of the amount of such losses and reasonable out-of-pocket
expenses, absent manifest error, shall be binding and conclusive. Losses subject
to reimbursement hereunder shall include, without limiting the generality of the
foregoing, expenses actually incurred by any Lender or any participant of such
Lender permitted hereunder in connection with the re-employment of funds
prepaid, repaid, not borrowed, or paid, as the case may be, and any lost profit
of such Lender or any participant of such Lender over the remainder of the
Eurodollar Advance Period for such prepaid Advance.
Section 2.10 Pro Rata Treatment.
(a) Advances. Each Advance with respect to the Term Loans
and the Revolving Loans from the Lenders under this Agreement shall be
made pro rata on the basis of their respective Revolving Commitment
Ratios and Term Commitment Ratios, as applicable.
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(b) Payments. Each payment and prepayment of the
principal of the Term Loans and the Revolving Loans and each payment of
interest on the Term Loans and the Revolving Loans received from the
Borrowers shall be made by the Administrative Agent to the Lenders pro
rata on the basis of their respective unpaid principal amounts thereof
outstanding immediately prior to such payment or prepayment (except in
cases when a Lender's right to receive payments is restricted pursuant
to Section 2.2(e) hereof). If any Lender shall obtain any payment
(whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Term Loans or the Revolving Loans in
excess of its ratable share of the Loans under its Aggregate Commitment
Ratio (or in violation of any restriction set forth in Section 2.2(e)
hereof), such Lender shall forthwith purchase from the other Lenders
such participation in the Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender,
such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery without interest thereon unless the Lender obligated to repay
such amount is required to pay interest. Each Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to
this Section 2.10(b) may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender were the
direct creditor of such Borrower in the amount of such participation.
Section 2.11 Application of Payments Prior to Acceleration.
(a) Application of Payments Prior to Acceleration and
Prior to Exercise of the Call Option. Prior to the acceleration of the
Obligations under Section 8.2 hereof and prior to exercise of the Call
Option, and other than with respect to payments required to be made
pursuant to Section 2.6 hereof (which shall be applied as set forth in
Section 2.6 hereof), if some but less than all amounts due from the
Borrowers are received by the Administrative Agent, the Administrative
Agent shall distribute such amounts in the following order of priority:
FIRST, to the payment of interest then due and payable on the Revolving
Loans and the Term Loans, on a pro rata basis; SECOND, to the payment
of principal then due and payable on the Term Loans, on a pro rata
basis; THIRD, to the payment of principal then due and payable on the
Revolving Loans; FOURTH, to the payment of any fees then due and
payable to the Administrative Agent hereunder or under any other Loan
Document; FIFTH, to the payment of any fees then due and payable to the
Lenders and the Issuing Banks hereunder or under any other Loan
Documents; SIXTH, to the extent of any Letter of Credit Obligations
then outstanding, to the Letter of Credit Reserve Account; SEVENTH, to
the payment of all other Obligations not otherwise referred to in this
Section 2.11 then due and payable hereunder or under the other Loan
Documents; and EIGHTH, to the costs and expenses (including attorneys'
fees and expenses), if any, incurred by the Administrative Agent or any
Lender in the collection of such amounts under this Agreement or any of
the other Loan Documents.
(b) Application of Payments Prior to Acceleration and
After Exercise of the Call Option. Prior to the acceleration of the
Obligations under Section 8.2 hereof and after exercise of the Call
Option and payment of the Purchase Price (as defined in the
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Xxxxxxxx Guaranty), and other than with respect to payments required to
be made pursuant to Section 2.6 hereof (which shall be applied as set
forth in Section 2.6 hereof), if some but less than all amounts due
from the Borrowers are received by the Administrative Agent, the
Administrative Agent shall distribute such amounts in the following
order of priority: FIRST, to the payment of interest then due and
payable on the Revolving Loans; SECOND, to the payment of principal
then due and payable on the Revolving Loans; THIRD, to the payment of
any fees then due and payable to the Administrative Agent hereunder or
under any other Loan Document; FOURTH, to the payment of any fees then
due and payable to the Lenders and the Issuing Banks hereunder or under
any other Loan Documents; FIFTH, to the extent of any Letter of Credit
Obligations then outstanding, to the Letter of Credit Reserve Account;
SIXTH, to the payment of all other Obligations (other than the Term
Loan Obligations) not otherwise referred to in this Section 2.11 then
due and payable hereunder or under the other Loan Documents; and
SEVENTH, to the costs and expenses (including attorneys' fees and
expenses), if any, incurred by the Administrative Agent or any Lender
in the collection of such amounts under this Agreement or any of the
other Loan Documents.
Section 2.12 Use of Proceeds. The proceeds of the Revolving Loans
shall be used for the Borrowers' general operating capital needs to the extent
not inconsistent with the provisions of this Agreement.
Section 2.13 All Obligations to Constitute Joint and Several
Obligations. All Obligations shall constitute joint and several obligations of
the Borrowers and shall be secured by the Administrative Agent's security
interest (on behalf of itself, the Issuing Banks and the Lenders) and Lien upon
all of the Collateral, and by all other security interests and Liens heretofore,
now or at any time hereafter granted by each Borrower to the Administrative
Agent and the Lenders, to the extent provided in the Security Documents under
which such Lien arises. Each Borrower expressly represents and acknowledges that
it is part of a common enterprise with the other Borrowers and that any
financial accommodations by the Administrative Agent and the Lenders to any
other Borrower hereunder and under the other Loan Documents are and will be of
direct and indirect interest, benefit and advantage to all Borrowers. Each
Borrower acknowledges that any Request for Advance, conversion request or other
notice given by any Borrower to the Administrative Agent or any Lender shall
bind all Borrowers, and that any notice given by the Administrative Agent or any
Lender to any Borrower shall be effective with respect to all Borrowers. Each
Borrower acknowledges and agrees that each Borrower shall be liable, on a joint
and several basis, for all of the Loans, regardless of which Borrower actually
may have received the proceeds of any of the Loans or other extensions of credit
hereunder or the amount of such Loans received or the manner in which the
Administrative Agent or any of the Lenders accounts for such Loans or other
extensions of credit on its books and records, and further acknowledges and
agrees that Loans to any Borrower inure to the mutual benefit of all of the
Borrowers and that the Administrative Agent and the Lenders are relying on the
joint and several liability of the Borrowers in extending the Loans and other
financial accommodations hereunder.
Each Borrower shall be entitled to subrogation and contribution rights
from and against the other Borrowers to the extent any Borrower is required to
pay to the Lenders any amount in excess of the Loans advanced hereunder directly
to such Borrower or as otherwise available
37
under Applicable Law; provided, however, that such subrogation and contribution
rights are and shall be subject to the terms and conditions of Section 2.14
hereof.
Section 2.14 Maximum Borrower Liability.
(a) It is the intent of the Borrowers, the Administrative
Agent, and the Lenders and any other Person holding any of the
Obligations that each Borrower's maximum obligations hereunder (such
Borrower's "Maximum Borrower Liability") in any case or proceeding
referred to below (but only in such a case or proceeding) shall not be
in excess of:
(i) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code on or within
one (1) year from the date on which any of the Obligations of
such Borrower are incurred, the maximum amount that would not
otherwise cause the obligations of such Borrower hereunder (or
any other obligations of such Borrower to the Administrative
Agent, the Issuing Banks, the Lenders and any other Person
holding any of the Obligations) to be avoidable or
unenforceable against such Borrower under (A) Section 548 of
the Bankruptcy Code or (B) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code subsequent to
one (1) year from the date on which any of the Obligations of
such Borrower are incurred, the maximum amount that would not
otherwise cause the obligations of such Borrower hereunder (or
any other obligations of such Borrower to the Administrative
Agent, the Issuing Banks, the Lenders and any other Person
holding any of the Obligations) to be avoidable or
unenforceable against such Borrower under any state fraudulent
transfer or fraudulent conveyance act or statute applied in
any such case or proceeding by virtue of Section 544 of the
Bankruptcy Code; or
(iii) in a case or proceeding commenced by or
against such Borrower under any law, statute or regulation
other than the Bankruptcy Code relating to dissolution,
liquidation, conservatorship, bankruptcy, moratorium,
readjustment of debt, compromise, rearrangement, receivership,
insolvency, reorganization or similar debtor relief from time
to time in effect affecting the rights of creditors generally
(collectively, "Other Debtor Relief Law"), the maximum amount
that would not otherwise cause the obligations of such
Borrower hereunder (or any other obligations of such Borrower
to the Administrative Agent, the Issuing Banks and the Lenders
and any other Person holding any of the Obligations) to be
avoidable or unenforceable against such Borrower under such
Other Debtor Relief Law, including, without limitation, any
state fraudulent transfer or fraudulent conveyance act or
statute applied in any such case or proceeding. (The
substantive state or federal laws under which the possible
avoidance or unenforceability of the obligations of any
Borrower hereunder (or any other obligations of such Borrower
to the Administrative Agent, the Issuing Banks, the
38
Lenders and any other Person holding any of the Obligations)
shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the extent set forth in Section 2.14(a), but only
to the extent that the Obligations of any Borrower hereunder, or the
transfers made by such Borrower under any Security Document, would
otherwise be subject to avoidance under any Avoidance Provisions if
such Borrower is not deemed to have received valuable consideration,
fair value, fair consideration or reasonably equivalent value for such
transfers or obligations, or if such transfers or obligations of any
Borrower hereunder would render such Borrower insolvent, or leave such
Borrower with an unreasonably small capital or unreasonably small
assets to conduct its business, or cause such Borrower to have incurred
debts (or to have intended to have incurred debts) beyond its ability
to pay such debts as they mature, in each case as of the time any of
the obligations of such Borrower are deemed to have been incurred and
transfers made under such Avoidance Provisions, then the obligations of
such Borrower hereunder shall be reduced to that amount which, after
giving effect thereto, would not cause the Obligations of such Borrower
hereunder (or any other obligations of such Borrower to the
Administrative Agent, the Issuing Banks and the Lenders or any other
Person holding any of the Obligations), as so reduced, to be subject to
avoidance under such Avoidance Provisions. This Section 2.14(b) is
intended solely to preserve the rights hereunder of the Administrative
Agent, the Issuing Banks and the Lenders and any other Person holding
any of the Obligations to the maximum extent that would not cause the
obligations of the Borrowers hereunder to be subject to avoidance under
any Avoidance Provisions, and none of the Borrowers nor any other
Person shall have any right, defense, offset, or claim under this
Section 2.14(b) as against the Administrative Agent, the Issuing Banks
and the Lenders or any other Person holding any of the Obligations that
would not otherwise be available to such Person under the Avoidance
Provisions.
(c) Each Borrower agrees that the Obligations may at any
time and from time to time exceed the Maximum Borrower Liability of
such Borrower, and may exceed the aggregate Maximum Borrower Liability
of all Borrowers hereunder, without impairing this Agreement or any
provision contained herein or affecting the rights and remedies of the
Lenders, the Issuing Banks and the Administrative Agent hereunder.
(d) In the event any Borrower (a "Funding Borrower")
shall make any payment or payments under this Agreement or shall suffer
any loss as a result of any realization upon any collateral granted by
it to secure its obligations hereunder, each other Borrower (each, a
"Contributing Borrower") shall contribute to such Funding Borrower an
amount equal to such payment or payments made, or losses suffered, by
such Funding Borrower determined as of the date on which such payment
or loss was made multiplied by the ratio of (i) the Maximum Borrower
Liability of such Contributing Borrower (without giving effect to any
right to receive any contribution or other obligation to make any
contribution hereunder), to (ii) the aggregate Maximum Borrower
Liability of all Borrowers (including the Funding Borrowers) hereunder
(without giving effect to any right to receive, or obligation to make,
any contribution hereunder). Nothing in this Section 2.14(d) shall
affect each Borrower's joint and several liability to
39
the Administrative Agent, the Issuing Banks and the Lenders for the
entire amount of its Obligations. Each Borrower covenants and agrees
that its right to receive any contribution hereunder from a
Contributing Borrower shall be subordinate and junior in right of
payment to all obligations of the Borrowers to the Administrative
Agent, the Issuing Banks and the Lenders hereunder.
(e) No Borrower will exercise any rights which it may
acquire by way of subrogation hereunder or under any other Loan
Document or at law by any payment made hereunder or otherwise, nor
shall any Borrower seek or be entitled to seek any contribution or
reimbursement from any other Borrower in respect of payments made by
such Borrower hereunder or under any other Loan Document, until all
amounts owing to the Administrative Agent, the Issuing Banks and the
Lenders on account of the Obligations are paid in full in cash and the
Commitments are terminated. If any amounts shall be paid to any
Borrower on account of such subrogation or contribution rights at any
time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Borrower in trust for the Administrative
Agent, the Issuing Banks and the Lenders, segregated from other funds
of such Borrower, and shall, forthwith upon receipt by such Borrower,
be turned over to the Administrative Agent in the exact form received
by such Borrower (duly endorsed by such Borrower to the Administrative
Agent, if required), to be applied against the Obligations, whether
matured or unmatured, as provided for herein.
Section 2.15 Maximum Rate of Interest. The Borrowers and the
Administrative Agent, the Issuing Banks and the Lenders hereby agree and
stipulate that the only charges imposed upon the Borrowers for the use of money
in connection with this Agreement are and shall be the specific interest and
fees described in this Article 2 and in any other Loan Document. Notwithstanding
the foregoing, the Borrowers and the Administrative Agent, the Issuing Banks and
the Lenders further agree and stipulate that all closing fees, upfront fees,
agency fees, syndication fees, facility fees, underwriting fees, default
charges, late charges, funding or "breakage" charges, increased cost charges,
attorneys' fees and reimbursement for costs and expenses paid by the
Administrative Agent, any Issuing Bank or any Lender to third parties or for
damages incurred by the Administrative Agent, any Issuing Bank or any Lender are
charges to compensate the Administrative Agent, the Issuing Banks and the
Lenders for underwriting and administrative services and costs or losses
performed or incurred, and to be performed and incurred, by the Administrative
Agent, the Issuing Banks and the Lenders in connection with this Agreement and
the other Loan Documents and shall under no circumstances be deemed to be
charges for the use of money pursuant to Official Code of Georgia Annotated
Sections 7-4-2 and 7-4-18. In no event shall the amount of interest and other
charges for the use of money payable under this Agreement exceed the maximum
amounts permissible under any law that a court of competent jurisdiction shall,
in a final determination, deem applicable. The Borrowers and the Administrative
Agent, the Issuing Banks and the Lenders, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and other
charges for the use of money and manner of payment stated within it; provided,
however, that, anything contained herein to the contrary notwithstanding, if the
amount of such interest and other charges for the use of money or manner of
payment exceeds the maximum amount allowable under applicable law, then, ipso
facto as of the date of this Agreement, the Borrowers are and shall be liable
only for the payment of such maximum as allowed by law, and payment received
from the Borrowers
40
in excess of such legal maximum, whenever received, shall be applied to reduce
the principal balance of the Obligations to the extent of such excess.
Section 2.16 Letters of Credit.
(a) Subject to the terms and conditions hereof, the Issuing Banks,
on behalf of the Lenders, and in reliance on the agreements of the Lenders set
forth in subsection (c) below, hereby agree to issue one or more Letters of
Credit up to an aggregate face amount equal to the Letter of Credit Commitment;
provided, however, that the Issuing Banks shall not issue any Letter of Credit
unless the conditions precedent to the issuance thereof set forth in Section 3.3
hereof have been satisfied, and shall not issue any Letter of Credit if any
Default then exists or would be caused thereby or if, after giving effect to
such issuance, the Available Revolving Loan Commitment would be less than zero;
and provided further, however, that at no time shall the total Letter of Credit
Obligations outstanding hereunder exceed the Letter of Credit Commitment. Each
Letter of Credit shall (1) be denominated in U.S. dollars, and (2) expire no
later than the earlier to occur of (A) the Maturity Date, and (B) 365 days after
its date of issuance (but may contain provisions for automatic renewal provided
that no Default or Event of Default exists on the renewal date or would be
caused by such renewal). Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
Georgia. The Issuing Banks shall not at any time be obligated to issue, or cause
to be issued, any Letter of Credit if such issuance would conflict with, or
cause such Issuing Bank to exceed any limits imposed by, any Applicable Law.
(b) The Borrowers may from time to time request that an Issuing
Bank issue a Letter of Credit. The Borrowers shall execute and deliver to the
Administrative Agent and applicable Issuing Bank a Request for Issuance of
Letter of Credit for each Letter of Credit to be issued by such Issuing Bank,
not later than 12:00 noon (Eastern time) on the fifth (5th) Business Day
preceding the date on which the requested Letter of Credit is to be issued, or,
such shorter notice as may be acceptable to the Issuing Bank and the
Administrative Agent. Upon receipt of any such Request for Issuance of Letter of
Credit, subject to satisfaction of all conditions precedent thereto as set forth
in Section 3.3 hereof, the Issuing Bank shall process such Request for Issuance
of Letter of Credit and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby. The Issuing Bank shall furnish a copy of such Letter of Credit to the
Borrowers and the Administrative Agent following the issuance thereof. The
Borrowers shall pay or reimburse the Issuing Bank for normal and customary costs
and expenses incurred by such Issuing Bank in issuing, effecting payment under,
amending or otherwise administering the Letters of Credit.
(c) Immediately upon the issuance by an Issuing Bank of a Letter
of Credit, and in accordance with the terms and conditions of this Agreement,
such Issuing Bank shall be deemed to have sold and transferred to each Lender,
and each Lender shall be deemed irrevocably and unconditionally to have
purchased and received from such Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of such Lender's Revolving
Commitment Ratio, in such Letter of Credit and the
41
obligations of the Borrowers with respect thereto (including, without
limitation, all Letter of Credit Obligations with respect thereto). At such time
as the Administrative Agent shall be notified by the Issuing Bank that the
beneficiary under any Letter of Credit has drawn on the same, the Administrative
Agent shall promptly notify the Borrowers and each Lender, by telephone or
telecopy, of the amount of the draw and, in the case of each Lender, such
Lender's portion of such draw amount as calculated in accordance with its
Revolving Commitment Ratio.
(d) The Borrowers hereby agree to immediately reimburse an Issuing
Bank for amounts paid by such Issuing Bank in respect of draws under a Letter of
Credit. In order to facilitate such repayment, the Borrowers hereby irrevocably
request the Lenders, and the Lenders hereby severally agree, on the terms and
conditions of this Agreement (other than as provided in Article 2 hereof with
respect to the amounts of, the timing of requests for, and the repayment of
Advances hereunder and in Article 3 hereof with respect to conditions precedent
to Advances hereunder), with respect to any drawing under a Letter of Credit, to
make a Base Rate Advance on each day on which a draw is made under any Letter of
Credit and in the amount of such draw, and to pay the proceeds of such Advance
directly to the Issuing Bank to reimburse the Issuing Bank for the amount paid
by it upon such draw. Each Lender shall pay its share of such Base Rate Advance
by paying its portion of such Advance to the Administrative Agent in accordance
with Section 2.2(e) hereof and its Revolving Commitment Ratio, without reduction
for any set-off or counterclaim of any nature whatsoever and regardless of
whether any Default or Event of Default then exists or would be caused thereby.
The disbursement of funds in connection with a draw under a Letter of Credit
pursuant to this Section hereunder shall be subject to the terms and conditions
of Section 2.2(e) hereof. The obligation of each Lender to make payments to the
Administrative Agent, for the account of the Issuing Bank, in accordance with
this Section 2.16 shall be absolute and unconditional and no Lender shall be
relieved of its obligations to make such payments by reason of noncompliance by
any other Person with the terms of the Letter of Credit or for any other reason
(other than the gross negligence of the Issuing Bank in paying such Letter of
Credit, as determined by a final non-appealable judgment of a court of competent
jurisdiction). The Administrative Agent shall promptly remit to the Issuing Bank
the amounts so received from the other Lenders. Any overdue amounts payable by
the Lenders to the Issuing Bank in respect of a draw under any Letter of Credit
shall bear interest, payable on demand, (x) for the first two Business Days, at
the rate on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day by
the Federal Reserve Bank of New York, and (y) thereafter, at the Base Rate.
(e) The Borrowers agree that each Advance by the Lenders to
reimburse the Issuing Bank for draws under any Letter of Credit, shall, for all
purposes hereunder, be deemed to be a Base Rate Advance under the Revolving Loan
Commitment and shall be payable and bear interest in accordance with all other
Base Rate Advances of Revolving Loans.
(f) Borrower agrees that any action taken or omitted to be taken
by an Issuing Bank in connection with any Letter of Credit, except for such
actions or omissions as
42
shall constitute gross negligence or willful misconduct on the part of such
Issuing Bank as determined by a final non-appealable judgment of a court of
competent jurisdiction, shall be binding on the Borrowers as between the
Borrowers and the Issuing Bank, and shall not result in any liability of the
Issuing Bank to the Borrower. The obligation of the Borrowers to reimburse an
Issuing Bank for a drawing under any Letter of Credit or the Lenders for
Advances made by them to Issuing Banks on account of draws made under the
Letters of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever (unless payment of such drawing constituted gross
negligence or willful misconduct on the part of the Issuing Bank, as determined
by a final non-appealable order of a court of competent jurisdiction),
including, without limitation, the following circumstances:
(i) Any lack of validity or enforceability of any Loan
Document;
(ii) Any amendment or waiver of or consent to any
departure from any or all of the Loan Documents;
(iii) Any improper use which may be made of any Letter of
Credit or any improper acts or omissions of any beneficiary or
transferee of any Letter of Credit in connection therewith;
(iv) The existence of any claim, set-off, defense or any
right which the Borrowers may have at any time against any beneficiary
or any transferee of any Letter of Credit (or Persons for whom any such
beneficiary or any such transferee may be acting), any Lender or any
other Person, whether in connection with any Letter of Credit, any
transaction contemplated by any Letter of Credit, this Agreement, or
any other Loan Document, or any unrelated transaction;
(v) Any statement or any other documents presented under
any Letter of Credit proving to be insufficient, forged, fraudulent or
invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) The insolvency of any Person issuing any documents in
connection with any Letter of Credit;
(vii) Any breach of any agreement between the Borrowers and
any beneficiary or transferee of any Letter of Credit;
(viii) Any irregularity in the transaction with respect to
which any Letter of Credit is issued, including any fraud by the
beneficiary or any transferee of such Letter of Credit;
(ix) Any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
wireless or otherwise, whether or not they are in code;
43
(x) Any act, error, neglect or default,
omission, insolvency or failure of business of any of the
correspondents of the Issuing Bank;
(xi) Any other circumstances arising from causes
beyond the control of the Issuing Bank;
(xii) Payment by the Issuing Bank under any Letter
of Credit against presentation of a sight draft or a
certificate which does not comply with the terms of such
Letter of Credit, provided that such payment shall not have
constituted gross negligence or willful misconduct of the
Issuing Bank as determined by a final non-appealable judgment
of a court of competent jurisdiction, and
(xiii) Any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
(g) If any change in Applicable Law, any change in the
interpretation or administration thereof, or any change in compliance
with Applicable Law by the Issuing Bank as a result of any request or
directive of any Governmental Authority, central bank or comparable
agency (whether or not having the force of law) after the Agreement
Date shall (i) impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board), special
deposit, capital adequacy, assessment or other requirements or
conditions against letters of credit issued by the Issuing Bank or (ii)
impose on the Issuing Bank any other condition regarding this Agreement
or any Letter of Credit or any participation therein, and the result of
any of the foregoing in the determination of the Issuing Bank is to
increase the cost to the Issuing Bank of issuing or maintaining any
Letter of Credit or purchasing or maintaining any participation
therein, then, on the earlier of the Maturity Date or a date not more
than five (5) days after demand by the Issuing Bank, the Borrowers
agree to pay to the Issuing Bank, from time to time as specified by the
Issuing Bank, such additional amount or amounts as the Issuing Bank
determines will compensate it for such increased costs, from the date
such change or action is effective; provided that the Borrowers shall
not be required to compensate the Issuing Bank pursuant to this Section
2.16(g) for any increased costs incurred more than 90 days prior to the
date that the Issuing Bank notifies the Borrowers of the change in law
giving rise to such increased costs and of the Issuing Bank's intention
to claim compensation therefor; provided further that, if the change in
law giving rise to such increased costs is retroactive, then the 90-day
period referred to above shall be extended to include the period of
retroactive effect thereof. A certificate as to such increased cost
incurred by the Issuing Bank as a result of any event referred to in
this paragraph submitted by the Issuing Bank to the Borrowers shall be
conclusive, absent manifest error, as to the amount thereof.
(h) The Borrowers will indemnify and hold harmless the
Administrative Agent, each Issuing Bank and each other Lender and each
of their respective employees, representatives, officers and directors
from and against any and all claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable
attorneys' fees) which may be imposed on, incurred by or asserted
against the Administrative Agent, such
44
Issuing Bank or any such other Lender in any way relating to or arising
out of the issuance of a Letter of Credit, except that the Borrowers
shall not be liable to the Administrative Agent, any Issuing Bank or
any such Lender for any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from the gross negligence
or willful misconduct of the Administrative Agent, such Issuing Bank or
such Lender, as the case may be, as determined by a final
non-appealable judgment of a court of competent jurisdiction. This
Section 2.16(h) shall survive termination of this Agreement.
(i) Each Lender shall be responsible (to the extent the
Issuing Bank is not reimbursed by the Borrower) for its pro rata share
(based on such Lender's Revolving Commitment Ratio) of any and all
reasonable out-of-pocket costs, expenses (including reasonable legal
fees) and disbursements which may be incurred or made by the Issuing
Bank in connection with the collection of any amounts due under, the
administration of, or the presentation or enforcement of any rights
conferred by any Letter of Credit, the Borrower's or any guarantor's
obligations to reimburse draws thereunder or otherwise. In the event
the Borrowers shall fail to pay such expenses of the Issuing Bank
within fifteen (15) days of demand for payment by the Issuing Bank,
each Lender shall thereupon pay to the Issuing Bank its pro rata share
(based on such Lender's Revolving Commitment Ratio) of such expenses
within ten (10) days from the date of the Issuing Bank's notice to the
Lenders of the Borrower's failure to pay; provided, however, that if
the Borrowers shall thereafter pay such expenses, the Issuing Bank will
repay to each Lender the amounts received from such Lender hereunder.
Section 2.17 The Guaranty.
(a) Guaranty. The Parent hereby unconditionally
guarantees to the Administrative Agent, the Issuing Banks and the
Lenders and their respective permitted successors and assigns and the
subsequent holders of the Obligations (including, without limitation,
any interest on the Loans accruing after the filing of any insolvency,
receivership, bankruptcy, dissolution, liquidation, or reorganization
proceeding, or in any other proceeding, whether voluntary or
involuntary, by or against the Parent, any Borrower or any of the
Borrowers' Subsidiaries, under any bankruptcy or insolvency law or
laws, federal or state relating to the relief of debtors of any
jurisdiction, whether now or hereafter in effect, and in any
out-of-court composition, assignment for the benefit of creditors,
readjustment of Indebtedness, reorganization, extension or other debt
arrangement of any kind (collectively, an "Insolvency Proceeding")),
whether or not such interest accrues or is recoverable against the
Borrowers after the filing of such petition for purposes of the
Bankruptcy Code or is an allowed claim in such proceeding),
irrespective of the validity and enforceability of this Agreement, the
Notes or the other Loan Documents or the Obligations of the Borrowers
or any of the other Guarantors hereunder or thereunder, the value or
sufficiency of any Collateral or any other circumstance that might
otherwise affect the liability of a guarantor, that: (i) the principal
of and interest on the Loans, the Notes and all other Obligations of
the Borrowers and the other Guarantors to the Administrative Agent, the
Issuing Banks and the Lenders under this Agreement, the Notes and the
other Loan Documents shall be promptly paid in full when due, whether
at stated maturity, by acceleration or otherwise, in accordance with
the terms
45
hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, the
same shall be promptly paid in full when due in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The foregoing guaranty is a guaranty of
payment and not of collection. Failing payment when due of any amount
so Guaranteed for whatever reason, the Parent will be obligated to pay
the same immediately.
(b) Waivers and Releases. The Parent hereby waives notice
of, and consents to, any extension of time of payment, renewals,
releases of collateral, delays in obtaining or realizing upon or
failures to obtain, perfect, or maintain perfection of, or realize upon
collateral or other indulgence from time to time granted by any of the
Administrative Agent, the Issuing Banks or any of the Lenders in
respect of this Agreement, the Notes or any other Loan Document. Until
the Obligations have been paid in full in cash or otherwise satisfied
to the satisfaction of the Administrative Agent, the Issuing Banks and
the Lenders, the Parent hereby releases the Borrowers from all, and
agrees not to assert or enforce (whether by or in a legal or equitable
proceeding or otherwise) any, "claims" (as defined in 11 X.X.X.xx.
101(4)), whether arising under Applicable Law or otherwise, to which
the Parent is or would be entitled by virtue of its obligations
hereunder, any payment made pursuant hereto or the exercise by the
Administrative Agent, the Issuing Banks or any of the Lenders of their
rights with respect to any Collateral, including any such claims to
which the Parent may be entitled as a result of any right of
subrogation, exoneration or reimbursement. To the extent that the
Borrowers may not be released by the Parent under this Section 2.17,
the Parent agrees that, until the Obligations have been paid in full in
cash or otherwise satisfied to the satisfaction of the Administrative
Agent, the Issuing Banks and the Lenders, it shall not be entitled to
any right of subrogation, exoneration, reimbursement or contribution in
respect of any Obligations Guaranteed hereby. With respect to this
Agreement and the Notes, the Parent hereby waives presentment, protest,
demand of payment, notice of dishonor and all other notices and demands
whatsoever. The Parent further agrees that, as between the Parent, on
the one hand, and the Administrative Agent, the Issuing Banks and the
Lenders, on the other hand, (i) the maturity of the Obligations
Guaranteed hereby may be accelerated as provided in Section 8.2 hereof
for the purposes of this Guaranty, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the
Obligations Guaranteed hereby, and (ii) in the event of any declaration
of acceleration of such Obligations as provided in Section 8.2 hereof,
such Obligations (whether or not otherwise due and payable) shall
forthwith become due and payable by the Parent for purposes of this
guarantee. The Obligations of the Parent under this Section 2.17 shall
be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of the Borrowers is rescinded or must
otherwise be restored by any holder of any of the Obligations
Guaranteed hereunder, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Parent agrees that
it will indemnify the Administrative Agent, the Issuing Banks and the
Lenders on demand for their out-of-pocket costs and expenses
(including, without limitation, reasonable fees and expenses of
counsel) incurred by the Administrative Agent, the Issuing Banks and
the Lenders in connection with such rescission or restoration.
46
(c) Miscellaneous.
(i) Upon the bankruptcy or winding up or other
distribution of assets of the Borrowers or any Subsidiary of
the Borrowers or of any surety or guarantor for any of
Obligations of the Borrowers to the Administrative Agent, the
Issuing Banks and the Lenders, or any of them, the rights of
the Administrative Agent, the Issuing Banks and the Lenders
against the Parent shall not be affected or impaired by the
omission of any of the Administrative Agent, any Issuing Bank
or any Lender to prove its claim, or to prove its full claim,
and the Administrative Agent may prove such claims as it sees
fit and may refrain from proving any claim and in its
discretion may value as it sees fit or refrain from valuing
any security held by it without in any way releasing, reducing
or otherwise affecting the liability of the Parent to any of
the Administrative Agent, any Issuing Bank or any Lender.
(ii) The Parent absolutely, unconditionally and
irrevocably waives any and all right to assert any defense,
set-off, counterclaim or cross-claim of any nature whatsoever
with respect to this Section 2.17 or the obligations of the
Parent hereunder or the obligations of any other Person or
party (including, without limitation, the Borrowers) relating
to this Section 2.17 or the obligations of any other guarantor
with respect to the Obligations in any action or proceeding
brought by the Administrative Agent, any Issuing Bank or any
Lender to collect the Obligations or any portion thereof, or
to enforce the obligations of the Parent under this Section
2.17.
(iii) The Administrative Agent, the Issuing Banks
and the Lenders, or any of them, may from time to time,
without exonerating or releasing the Parent in any way under
this Guaranty, (i) release, discharge, abandon or otherwise
deal with or fail to deal with any guarantor or surety of the
Obligations or any security or securities therefor or any part
thereof now or hereafter held by the Administrative Agent or
(ii) amend, modify, extend, accelerate or waive in any manner
any of the provisions, terms, or conditions of the Loan
Documents, all as they may consider expedient or appropriate
in their sole discretion or (iii) act or fail to act in any
manner referred to in this Section 2.17 without regard to
whether such action or inaction may deprive the Parent of its
right to subrogation against the Borrowers to recover full
indemnity for any payments made pursuant to this Section 2.17.
Without limiting the generality of this Section 2.17, it is
understood that the Administrative Agent, the Issuing Banks
and the Lenders may, without exonerating or releasing the
Parent, give up, or modify or abstain from perfecting or
taking advantage of any security for the Obligations and
accept or make any compositions or arrangements, and realize
upon any security for the Obligations when, and in such
manner, as such Person may deem expedient, all without notice
to the Parent.
(iv) If a claim is ever made upon the
Administrative Agent, the Issuing Banks and the Lenders for
the repayment or recovery of any amount or amounts received by
such Person in payment of any of the Obligations and such
Person repays all or part of such amount by reason of (i) any
judgment, decree or order of
47
any court or administrative body having jurisdiction over such
Person or any of its property, or (ii) any settlement or
compromise of any such claim effected by such Person with any
such claimant, including the Borrowers, then in such event the
Parent shall be and remain obligated to such Person hereunder
for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by such Person.
(v) The Parent expressly represents and
acknowledges that any financial accommodations by the
Administrative Agent, the Issuing Banks and the Lenders, or
any of them, to the Borrowers, including without limitation
the extension of the Loans and the issuance of the Letters of
Credit are and will be of direct interest, benefit and
advantage to the Parent.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Closing. The obligations of
the Lenders to undertake the Commitments and continue to fund any outstanding
"Loans" or existing "Letters of Credit" (each as defined under the Prior Credit
Agreement) under the Prior Credit Agreement, and to make Advances of any
Revolving Loans hereunder and the obligation of the Issuing Banks to issue any
Letters of Credit hereunder, are subject to the prior fulfillment of each of the
following conditions:
(a) The Administrative Agent or the Lenders, as
appropriate, shall have received each of the following, in form and
substance satisfactory to the Administrative Agent and the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Tranche A Loan Note to the
order of each Lender in the amount of such Lender's pro rata
share of the Tranche A Loan Commitment, and a duly executed
Tranche B Loan Note to the order of each Lender in the amount
of such Lender's pro rata share of the Tranche B Loan
Commitment;
(iii) A duly executed Revolving Loan Note to the
order of each Lender in the amount of such Lender's pro rata
share of the Revolving Loan Commitment;
(iv) The Security Agreement duly executed by each
of the Borrowers;
(v) The Trademark Security Agreement duly
executed by each of the Borrowers and each of the Subsidiaries
of the Borrowers which own trademarks;
(vi) The Pledge Agreements duly executed by the
pledgors party thereto, together with original stock
certificates, warrants, limited liability company interest
certificates or limited partnership interest certificates and
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appropriate transfer powers executed in blank with respect to
all collateral pledged thereunder;
(vii) The Subsidiary Security Agreement duly
executed by all direct and indirect Subsidiaries of the
Borrowers (other than foreign Subsidiaries);
(viii) The Subsidiary Guaranty duly executed by all
direct and indirect Subsidiaries of the Borrowers (other than
foreign Subsidiaries);
(ix) The Xxxxxxxx Guaranty duly executed by
Xxxxxxxx;
(x) The legal opinions of Xxxxxx & Bird LLP,
counsel to the Guarantors, Bull Run, Capital and Datasouth,
and Xxxxxxxx & Shohl LLP, counsel to Host, each with respect
to this Agreement in form and substance satisfactory to the
Administrative Agent;
(xi) A duly executed Borrowing Base Certificate
dated as of August 31, 2002;
(xii) A loan certificate as to each Borrower
signed by an Authorized Signatory of such Borrower in
substantially the form of Exhibit U attached hereto, including
a certificate of incumbency with respect to each Authorized
Signatory of such Borrower, together with appropriate
attachments which shall include, without limitation, the
following: (A) a copy of the Certificate or Articles of
Incorporation to the extent amended or modified since July 27,
2001 of such Borrower, certified to be true, complete and
correct by the Secretary of State for the jurisdiction of such
Borrower's incorporation, (B) a true, complete and correct
copy of the By-Laws to the extent amended or modified since
July 27, 2001 of such Borrower, (C) a true, complete and
correct copy of the resolutions of such Borrower authorizing
the borrowing hereunder and the execution, delivery and
performance by such Borrower of the Loan Documents, (D)
certificates of good standing from each jurisdiction in which
such Borrower is qualified to do business, (E) true, correct
and complete copies of any employment agreements of such
Borrower, and (F) true, correct and complete copies of any
shareholder or voting trust agreements with respect to such
Borrower;
(xiii) A loan certificate as to each direct or
indirect Subsidiary of any Borrower (other than foreign
Subsidiaries) signed by an Authorized Signatory of such
Subsidiary in substantially the form of Exhibit V attached
hereto, including a certificate of incumbency with respect to
each Authorized Signatory of such Subsidiary, together with
appropriate attachments which shall include, without
limitation, the following: (A) a copy of the Certificate or
Articles of Incorporation or other organizational document to
the extent amended or modified since July 27, 2001 of such
Subsidiary certified to be true, complete and correct by the
Secretary of State for the jurisdiction of such Subsidiary's
organization, (B) a true, complete and correct copy of the
By-Laws, Partnership Agreement or Limited Liability Company
Agreement to the extent amended or modified since July 27,
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2001 of such Subsidiary, (C) a true, complete and correct copy
of the resolutions of such Subsidiary authorizing the
execution, delivery and performance by such Subsidiary of the
Loan Documents to which it is a party, (D) certificates of
good standing from each jurisdiction in which such Subsidiary
is qualified to do business, and (E) true, correct and
complete copies of any shareholder or voting trust agreements
with respect to such Subsidiary; and
(xiv) A loan certificate of the Parent signed by
an Authorized Signatory of the Parent in substantially the
form of Exhibit W attached hereto, including a certificate of
incumbency with respect to each Authorized Signatory of the
Parent, together with appropriate attachments which shall
include, without limitation, the following: (A) a copy of the
Amended Articles of Incorporation of the Parent certified to
be true, complete and correct by the Secretary of State of
Georgia, (B) a true, complete and correct copy of the By-Laws
of the Parent, (C) a true, complete and correct copy of the
resolutions of the Parent authorizing the execution, delivery
and performance by the Parent of the Loan Documents, and (D)
certificates of good standing from each jurisdiction in which
the Parent is qualified to do business;
(xv) A Solvency Certificate of the Borrowers on a
consolidated basis with each of their Subsidiaries executed by
the Chief Financial Officer of each Borrower, regarding the
solvency and financial condition of the Borrowers and their
Subsidiaries, the accuracy of all internally prepared
financial statements and business plans, and the financial
projections and underlying assumptions contained in such
solvency analyses, in form and substance satisfactory to the
Administrative Agent, together with copies of financial
projections through August 31, 2004;
(xvi) Copies of certificates of insurance and the
related insurance policies with respect to the Borrowers and
meeting the requirements of Section 5.5 hereof;
(xvii) Since June 30, 2001, (i) no change in the
business, assets, management, operations, financial condition,
projections, or prospects of the Borrowers or any of their
Subsidiaries or Affiliates, or in the Collateral, shall have
occurred, which change, in the judgment of the Administrative
Agent and the Lenders, may have a Materially Adverse Effect,
(ii) there shall have been no material increase in the
liabilities (absolute or contingent) of the Borrowers or any
of their Subsidiaries or Affiliates, whether or not disclosed
or required to be reserved against on any pro forma balance
sheet, and (iii) there shall have been no material decrease in
the assets of the Borrowers or their Subsidiaries or
Affiliates, nor shall any of the Borrowers have made any
distributions (other than to any other Borrower), either by
dividends or otherwise, other than in the ordinary course of
business;
(xviii) Evidence that the CBS Contract is in full
force and effect on terms and conditions satisfactory to the
Administrative Agent;
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(xix) Payment of all fees and expenses payable to
the Administrative Agent, the affiliates of the Administrative
Agent, the Issuing Banks and the Lenders in connection with
the execution and delivery of this Agreement, including,
without limitation, fees and expenses of counsel to the
Administrative Agent, any appraisal and audit related fees and
expenses; and
(xx) Copies of the draft annual audited financial
statements of the Parent and its Subsidiaries for the fiscal
year ended June 30, 2002, and monthly unaudited financial
statements of the Parent and its Subsidiaries for the months
ending July and August, 2002.
(b) The Administrative Agent and the Lenders shall be
satisfied that the Loans and the use of proceeds thereof, comply in all
respects with Regulations T, U and X of the Board.
(c) The Administrative Agent and the Lenders shall have
received evidence satisfactory to each of them that all Necessary
Authorizations are in full force and effect and are not subject to any
pending or threatened reversal or cancellation, and that no Default or
Event of Default exists, after giving effect to the initial Advance,
hereunder, and the Administrative Agent and the Lenders shall have
received a certificate of an Authorized Signatory so stating.
Section 3.2 Conditions Precedent to Each Advance. The obligation
of the Lenders to make any Advance hereunder is subject to the fulfillment of
each of the following conditions immediately prior to or contemporaneously with
such Advance:
(a) All of the representations and warranties of the
Borrowers under this Agreement, which, pursuant to Section 4.3 hereof,
are made at and as of the time of such Advance, shall be true and
correct at such time, both before and after giving effect to the
application of the proceeds of the Advance, and the Administrative
Agent shall have received a certificate (which may be a Request for
Advance) to that effect signed by an Authorized Signatory of the
Borrowers and dated the date of such Advance;
(b) The incumbency of the Authorized Signatories shall be
as stated in the certificate of incumbency contained in the certificate
of the Borrowers delivered pursuant to Section 3.1(a) or as
subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Lenders;
(c) There shall not exist on the date of such Advance and
after giving effect thereto, a Default or an Event of Default
hereunder; and
(d) In the case of any Revolving Loan Advance, receipt by
the Administrative Agent of satisfactory evidence that, after borrowing
any such Revolving Loan Advance, the Borrowers and the Lenders shall be
in full compliance with Regulations T, U and X of the Board, including
evidence that the sum of the aggregate principal amount of the
outstanding Loans plus the Letter of Credit Obligations will not exceed
an amount equal to the sum of (a) 100% of the current fair market value
of all Collateral (other than
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Collateral constituting Margin Stock) plus (b) 50% of the current
market value of all Collateral constituting Margin Stock.
The Borrowers hereby agree that the delivery of any Request for Advance
hereunder shall be deemed to be the certification of the Authorized Signatory
thereof that there does not exist, on the date of the making of the Advance and
after giving effect thereto, a Default or an Event of Default hereunder.
Section 3.3 Conditions Precedent to Each Letter of Credit. The
obligation of the Issuing Banks to issue any Letter of Credit hereunder is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with the issuance of such Letter of Credit:
(a) All of the representations and warranties of the
Borrowers under this Agreement, which, pursuant to Section 4.3 hereof,
are made at and as of the time of the issuance of such Letter of
Credit, shall be true and correct at such time, both before and after
giving effect to the issuance of the Letter of Credit, and the
Administrative Agent shall have received a certificate (which may be a
Request for Issuance of Letter of Credit) to that effect signed by an
Authorized Signatory of the Borrowers and dated the date of the
issuance of such Letter of Credit;
(b) The incumbency of the Authorized Signatories shall be
as stated in the certificate of incumbency contained in the certificate
of the Borrowers delivered pursuant to Section 3.1(a) or as
subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Lenders;
(c) There shall not exist on the date of issuance of such
Letter of Credit, and after giving effect thereto, a Default or an
Event of Default; and
(d) Receipt by the Administrative Agent of satisfactory
evidence that, after issuing such Letter of Credit, the Borrowers and
the Lenders shall be in full compliance with Regulations T, U and X of
the Board, including evidence that the sum of the aggregate principal
amount of the outstanding Loans plus the Letter of Credit Obligations
will not exceed an amount equal to the sum of (a) 100% of the current
fair market value of all Collateral (other than Collateral constituting
Margin Stock) plus (b) 50% of the current market value of all
Collateral constituting Margin Stock.
The Borrowers hereby agree that the delivery of any Request for
Issuance of a Letter of Credit hereunder shall be deemed to be the certification
of the Authorized Signatory thereof that there does not exist, on the date of
issuance of the Letter of Credit and after giving effect thereto, a Default or
an Event of Default hereunder.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 General Representations and Warranties. In order to
induce the Administrative Agent, the Lenders and the Issuing Banks to enter into
this Agreement and to extend the Loans to the Borrowers, each of the Borrowers
hereby represents and warrants that:
(a) Organization; Power; Qualification. Each of the
Borrowers and each of their respective Subsidiaries is a corporation,
limited liability company or limited partnership duly organized,
validly existing, and in good standing under the laws of its state of
organization, has the power and authority to own or lease and operate
its properties and to carry on its business as now being and hereafter
proposed to be conducted, and is duly qualified and is in good standing
as a foreign corporation, limited liability company or limited
partnership, and authorized to do business, in each jurisdiction in
which the character of its properties or the nature of its business
requires such qualification or authorization and where failure to be so
qualified or authorized would not result in a Materially Adverse
Effect.
(b) Authorization; Enforceability. Each of the Borrowers
and each of their respective Subsidiaries has the power and has taken
all necessary corporate, limited liability company or partnership
action to authorize it to execute, deliver, and perform this Agreement
and each of the other Loan Documents to which it is a party in
accordance with the terms thereof and to consummate the transactions
contemplated hereby and thereby. This Agreement and each of the other
Loan Documents to which any Borrower or any of their Subsidiaries is a
party has been duly executed and delivered by such Borrower or such
Subsidiary, and is, and each of the other Loan Documents to which any
Borrower or any of their Subsidiaries is a party is, a legal, valid and
binding obligation of such Borrower or such Subsidiary, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditor's rights
generally.
(c) Partnerships; Joint Ventures; Subsidiaries. None of
the Borrowers nor any of their respective Subsidiaries is a partner or
joint venturer in any partnership or joint venture other than (i) the
Subsidiaries listed on Schedule 4.1(c) and (ii) the partnerships and
joint ventures listed on Schedule 4.1(c). Schedule 4.1(c) sets forth,
for each partnership or joint venture that is not a Subsidiary of a
Borrower, a complete and accurate statement of (A) the percentage
ownership of each such partnership or joint venture by each Borrower or
any Subsidiary of any Borrower, (B) the state or other jurisdiction of
formation or incorporation, as appropriate, of each such partnership or
joint venture, and (C) all of each such partnership's or joint
venture's trade names, trade styles or doing business forms on the date
of this Agreement. Except as set forth on Schedule 4.1(c), none of the
Borrowers nor any of their Subsidiaries has any Subsidiaries.
(d) Capital Stock and Related Matters. The authorized
Capital Stock of the Parent owned by Xxxxxxxx and the Xxxxxxxx
Affiliates as of the Agreement Date is set forth on Schedule 4.1(d)
attached hereto. The authorized Capital Stock of each Borrower is as
set forth on Schedule 4.1(d) attached hereto, and all of the shares of
such Capital
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Stock were issued and outstanding as of the Agreement Date and are
fully paid and non-assessable. As of the Agreement Date, the Capital
Stock of each Borrower is owned by the parties listed on Schedule
4.1(d) in the amounts set forth on such schedule. None of the Borrowers
has outstanding any stock or securities convertible into or
exchangeable for any shares of its Capital Stock, nor are there any
preemptive or similar rights to subscribe for or to purchase, or any
other rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments, or claims of any character
relating to, any Capital Stock or any stock or securities convertible
into or exchangeable for any Capital Stock. None of the Borrowers is
subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its Capital Stock or to
register any shares of its Capital Stock, and there are no agreements
restricting the transfer of any shares of any Borrower's Capital Stock.
(e) Compliance with Laws, Other Loan Documents, and
Contemplated Transactions. The execution, delivery, and performance of
this Agreement and each of the other Loan Documents in accordance with
the terms thereof and the consummation of the transactions contemplated
hereby and thereby do not and will not (i) violate any material
provisions of Applicable Law, (ii) conflict with, result in a breach
of, or constitute a default under the certificate of incorporation or
by-laws of any Borrower or any Subsidiary of any Borrower or under any
indenture, material agreement, or other material instrument to which
any Borrower or any Subsidiary of any Borrower is a party or by which
any Borrower or any Subsidiary of any Borrower or any of their
respective properties may be bound, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property
now owned or hereafter acquired by any Borrower or any Subsidiary of
any Borrower except Permitted Liens.
(f) Necessary Authorizations. Each Borrower and each
Subsidiary of a Borrower has obtained all Necessary Authorizations, and
all such Necessary Authorizations are in full force and effect. None of
said Necessary Authorizations is the subject of any pending or, to the
best of any Borrower's knowledge, threatened attack or revocation, by
the grantor of the Necessary Authorization. None of the Borrowers nor
any Subsidiary of any Borrower is required to obtain any additional
Necessary Authorizations in connection with the execution, delivery,
and performance, in accordance with the terms of this Agreement or any
other Loan Document, and the borrowing hereunder.
(g) Title to Properties. Each Borrower and each
Subsidiary of a Borrower has marketable, and legal title to, or a valid
leasehold interest in, all of its properties and assets, and none of
such properties or assets is subject to any Liens (other than Permitted
Liens).
(h) Material Contracts; Labor Matters. Schedule 4.1(h)
contains a complete list, as of the Agreement Date, of each contract or
agreement to which any Borrower or any Subsidiary of any Borrower is a
party which, if expired, terminated or canceled, would have a
Materially Adverse Effect and, upon the request of the Administrative
Agent or any Lender, the Borrowers will provide the Administrative
Agent or such
54
Lender, as applicable, with a copy of any such contract or agreement.
Except as disclosed on Schedule 4.1(h): (i) no material labor contract
to which any Borrower or any Subsidiary of any Borrower is a party or
is otherwise subject is scheduled to expire prior to the Maturity Date;
(ii) none of the Borrowers nor any of their respective Subsidiaries
has, within the two (2) year period immediately preceding the Agreement
Date, taken any action which would have constituted or resulted in a
"plant closing" or "mass layoff" within the meaning of the Federal
Worker Adjustment and Retraining Notification Act of 1988 or any
similar applicable federal, state or local law, and none of the
Borrowers has any reasonable expectation that any such action is or
will be required at any time prior to the Maturity Date; and (iii) on
the Agreement Date (A) none of the Borrowers nor any of their
respective Subsidiaries is a party to any labor dispute (other than any
immaterial disputes with such Borrower's or such Subsidiary's employees
as individuals and not affecting such Borrower's or such Subsidiary's
relations with any labor group or its workforce as a whole) and (B)
there are no pending or, to any Borrower's knowledge, threatened
strikes or walkouts relating to any material labor contracts to which
any Borrower or any Subsidiary of any Borrower is a party or is
otherwise subject. None of the employees of any Borrower or any
Subsidiary of any Borrower is a party to any collective bargaining
agreement with any Borrower or any Subsidiary of any Borrower.
(i) Taxes. Except as set forth on Schedule 4.1(i)
attached hereto, all federal, state, and other tax returns of each of
the Borrowers and each of their respective Subsidiaries required by law
to be filed have been duly filed, and all federal, state, and other
taxes, assessments, and other governmental charges or levies upon each
of the Borrowers and each of their respective Subsidiaries and any of
their respective properties, income, profits, and assets, which are due
and payable, have been paid, except any payment of any of the foregoing
which any Borrower or any Subsidiary of any Borrower, as applicable,
are currently contesting in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been
provided on the books of such Borrower or such Subsidiary, as the case
may be. The charges, accruals, and reserves on the books of each of the
Borrowers and each of their respective Subsidiaries in respect of taxes
are, in the reasonable judgment of the Borrowers, adequate. None of the
Borrowers nor any of their respective Subsidiaries are being audited,
or have knowledge of any pending audit, by the Internal Revenue Service
or any other taxing authority.
(j) Financial Statements. The Borrowers have furnished,
or caused to be furnished, to the Administrative Agent and the Lenders
financial statements for the Parent on a consolidated basis which are
complete and correct in all material respects and present fairly in
accordance with GAAP the financial position of the Parent on a
consolidated basis as at June 30, 2001 and July 31, 2002, and the
results of operations for the periods then ended. Except as disclosed
in such financial statements, none of the Borrowers nor any of their
respective Subsidiaries has any material liabilities, contingent or
otherwise, and there are no material unrealized or anticipated losses
of any Borrower or any Subsidiary of any Borrower which have not
heretofore been disclosed in writing to the Administrative Agent and
the Lenders. As of the Agreement Date, each of the Borrowers has a
fiscal year ending on August 31.
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(k) No Adverse Change. Since June 30, 2001, except as
previously disclosed to the Lenders under the Prior Credit Agreement,
there has occurred no event which could reasonably be expected to have
a Materially Adverse Effect.
(l) Investments and Guaranties. As of the Agreement Date,
none of the Borrowers owns the Capital Stock, partnership interests or
other securities of or equity interests in, or have outstanding loans
or advances to, or guaranties of the obligations of, any Person, except
as disclosed on Schedule 4.1(c) or Schedule 4.1(l).
(m) Liabilities, Litigation. Except for liabilities
incurred in the normal course of business, none of the Borrowers nor
any of their respective Subsidiaries has any material (individually or
in the aggregate) liabilities, direct or contingent, except as
disclosed or referred to in the financial statements referred to in
Section 4.1(j) above or with respect to the Obligations. As of the
Agreement Date, except as described on Schedule 4.1(m) and Schedule
4.1(x) attached hereto, there is no litigation, legal or administrative
proceeding, investigation, or other similar action of any nature
pending or, to the knowledge of any Borrower, threatened against or
affecting any Borrower or any Subsidiary of any Borrower or any of
their respective properties which could reasonably be expected to
result in any judgment against or liability of such Borrower or such
Subsidiary in excess of $100,000, or the loss of any certification or
license material to the operation of any Borrower's business. None of
such litigation disclosed on Schedule 4.1(m) and Schedule 4.1(x),
individually or collectively, could reasonably be expected to have a
Materially Adverse Effect. None of the Borrowers knows of any unusual
or unduly burdensome restriction, restraint, or hazard relative to the
business or properties of any Borrower or any Subsidiary of any
Borrower that is not customary for or generally applicable to similarly
situated businesses in the same industry as such Borrower or such
Subsidiary.
(n) ERISA. Each Borrower and each ERISA Affiliate and
each of their respective Plans are in substantial compliance with ERISA
and the Code and none of the Borrowers nor any of their ERISA
Affiliates incurred any accumulated funding deficiency with respect to
any such Plan within the meaning of ERISA or the Code. The Borrowers
and each of their ERISA Affiliates have complied with all material
requirements of ERISA Sections 601 through 608 and Code Section 4980B.
None of the Borrowers nor, to the best of the Borrowers' knowledge, any
of their ERISA Affiliates has made any promises of retirement or other
benefits to employees, except as set forth in the Plans. None of the
Borrowers nor any of their respective Subsidiaries has incurred any
material liability to the Pension Benefit Guaranty Corporation in
connection with any such Plan. The assets of each such Plan which is
subject to Title IV of ERISA are sufficient to provide the benefits
under such Plan, the payment of which the Pension Benefit Guaranty
Corporation would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities"
(as defined in ERISA Section 4001(a)(16)) due under the plan upon
termination. No Reportable Event has occurred and is continuing with
respect to any such Plan. No such Plan or trust created thereunder, or
party in interest (as defined in Section 3(14) of ERISA, or any
fiduciary (as defined in Section 3(21) of ERISA), has engaged in a
"prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would
56
subject such Plan or any other Plan of any Borrower or any ERISA
Affiliate of any Borrower, any trust created thereunder, or any such
party in interest or fiduciary, or any party dealing with any such Plan
or any such trust to any material penalty or tax on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the
Code. None of the Borrowers nor any of their ERISA Affiliates is a
participant in or is obligated to make any payment to a Multiemployer
Plan.
(o) Intellectual Property; Licenses; Certifications.
Except as set forth on Schedule 4.1(o), none of the Borrowers nor any
of their respective Subsidiaries owns any material registered patents,
trademarks, service marks or copyrights, and has no pending
registration applications with respect to any of the foregoing. No
other material patents, trademarks, service marks or copyrights are
necessary for the operation of the business of any Borrower or its
Subsidiaries. The Borrowers have all material licenses or
certifications necessary for the operation of any Borrower's business.
(p) Compliance with Law; Absence of Default. Each of the
Borrowers and each of their respective Subsidiaries is in material
compliance with all Applicable Laws and with all of the provisions of
its certificate of incorporation and by-laws, and no event has occurred
or has failed to occur which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes (i) a Default of (ii)
or a default by any Borrower under any indenture, material agreement,
or other material instrument, or any judgment, decree, or order to
which any Borrower or any Subsidiary of any Borrower is a party or by
which any Borrower or any Subsidiary of any Borrower or any of their
respective properties may be bound. Each of the Borrowers and each of
their respective Subsidiaries are in compliance in all material
respects with all applicable federal, state and local laws, rules and
regulations.
(q) Casualties; Taking of Properties. Since June 30,
2001, neither the business nor the properties of any Borrower or any
Subsidiary of any Borrower has been materially and adversely affected
as a result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike or other labor disturbance, embargo,
requisition or taking of property or cancellation of contracts, permits
or concessions by any domestic or foreign government or any agency
thereof, riot, activities of armed forces, or acts of God or of any
public enemy.
(r) Accuracy and Completeness of Information. All
information, reports, and other papers and data relating to any
Borrower or any Subsidiary of any Borrower furnished to the
Administrative Agent and the Lenders were, at the time the same were so
furnished, (i) to the extent prepared by third parties, to the best of
each Borrower's knowledge, and (ii) to the extent prepared by any
Borrower, complete and correct in all material respects in light of all
such information, reports and other papers and data taken as a whole at
such time. No fact is currently known to any Borrower which has, or
could reasonably be expected to have, a Materially Adverse Effect. With
respect to projections, estimates and forecasts given to the
Administrative Agent and the Lenders, such projections, estimates and
forecasts are based on the Borrowers' good faith assessment of the
future of the business at the time made. The Borrowers had a reasonable
basis for such assessments at the time made.
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(s) Compliance with Regulations T, U, and X. None of the
Borrowers nor any bank acting on any Borrower's behalf has taken or
will take any action which might cause this Agreement or the Notes to
violate Regulation T, U, or X or any other regulation of the Board or
to violate the Securities Exchange Act of 1934, in each case as now in
effect or as the same may hereafter be in effect. If so requested by
the Administrative Agent, the Borrowers will furnish the Administrative
Agent with (i) a statement or statements in conformity with the
requirements of Federal Reserve Form U-1 referred to in Regulation U of
the Board and (ii) other documents evidencing its compliance with the
margin regulations. None of the execution, delivery or performance by
the Borrowers of the transactions contemplated hereunder will violate,
or be inconsistent with, the provisions of Regulation T, U, or X of the
Board.
(t) Solvency. As of the Agreement Date and after giving
effect to the transactions contemplated by the Loan Documents: (i) the
property of each Borrower and its Subsidiaries, taken as a whole, at a
fair valuation on a going concern basis, will exceed its debt; (ii) the
capital of each Borrower and its Subsidiaries, taken as a whole, will
not be unreasonably small to conduct its business; and (iii) the
Borrowers and their Subsidiaries, taken as a whole, will not have
incurred debts, or have intended to incur debts, beyond its ability to
pay such debts as they mature. For purposes of this Section, "debt"
means any liability on a claim, and "claim" means (i) the right to
payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, undisputed, legal,
equitable, secured or unsecured, or (ii) the right to an equitable
remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
(u) Insurance. Each Borrower and each of its Subsidiaries
has insurance meeting the requirements of Section 5.5 hereof, and such
insurance policies are in full force and effect.
(v) Broker's or Finder's Commissions. No broker's or
finder's fee or commission will be payable with respect to the issuance
of the Notes, and no other similar fees or commissions will be payable
by any Borrower for any other services rendered to any Borrower
ancillary to the transactions contemplated herein.
(w) Real Property. All real property owned or leased by
any Borrower or any Subsidiary of any Borrower, and, with respect to
any leased property of a material nature, the name of the lessor of
such real property, is set forth in Schedule 4.1(w). True, correct and
complete copies of each of the material leases of the Borrowers or
their respective Subsidiaries have been delivered to the Administrative
Agent, and each such lease is valid, enforceable and in full force and
effect, and has not been modified or amended, except as otherwise set
forth in Schedule 4.1(w). Each Borrower or Subsidiary of a Borrower, as
applicable, is the sole holder of the lessee's interests under each
lease to which it is a party. None of the Borrowers nor any of their
respective Subsidiaries has made any pledge or assignment of any of it
rights under any such leases except as set forth in Schedule 4.1(w) and
there is no default or condition which, with the passage of time or the
giving of notice, or both, would constitute a material default on the
part of any
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party under such leases. As of the Agreement Date, none of the
Borrowers nor any of their respective Subsidiaries owns, leases or uses
any real property other than as set forth in Schedule 4.1(w). Each
Borrower and each of such Borrower's Subsidiaries owns good and
marketable fee simple title to all of its owned real property, and none
of its real property is subject to any Liens (other than Permitted
Liens). None of the Borrowers nor any of their respective Subsidiaries
owns or holds, or is obligated under or a party to, any option, right
of first refusal or any other contractual right to purchase, acquire,
sell, assign or dispose of any real property leased by it.
(x) Environmental Matters. Except as is described in
Schedule 4.1(x) attached hereto:
(i) The Property does not contain, in, on or
under, including, without limitation, the soil and groundwater
thereunder, any Hazardous Materials in violation of
Environmental Laws or in amounts that could give rise to any
material liability under Environmental Laws.
(ii) Each Borrower and each Subsidiary of a
Borrower is in compliance with all applicable Environmental
Laws, and there is no contamination or violation of any
Environmental Law which could materially interfere with the
continued operation of any of the Property or impair the
financial condition of the Borrowers and their Subsidiaries on
a consolidated basis.
(iii) None of the Borrowers nor any of their
respective Subsidiaries has received from any Governmental
Authority any complaint, or notice of violation, alleged
violation, investigation or advisory action or notice of
potential liability regarding matters of environmental
protection or permit compliance under applicable Environmental
Laws with regard to the Property, nor is any Borrower aware
that any such notice is pending.
(iv) Hazardous Materials have not been generated,
treated, stored, disposed of, at, on or under any of the
Property in violation of any Environmental Laws or in a manner
that could give rise to any material liability under
Environmental Laws nor have any Hazardous Materials been
transported or disposed of from any of the Property to any
other location in violation of any Environmental Laws or in a
manner that could give rise to liability under Environmental
Laws.
(v) None of the Borrowers nor any of their
respective Subsidiaries is a party to any governmental
administrative actions or judicial proceedings pending under
any Environmental Law with respect to any of the Property, 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 any of the Property.
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(vi) There has been no release or threat of
release of Hazardous Materials into the environment at or from
any of the Property, or arising from or relating to the
operations of the Borrowers, in material violation of
Environmental Laws or in amounts that could give rise to any
material liability under Environmental Laws.
(y) OSHA. All of the operations of the Borrowers and
their respective Subsidiaries are conducted in all material respects in
compliance with all applicable rules and regulations promulgated by the
Occupational Safety and Health Administration of the United States
Department of Labor.
(z) Name of Borrowers. Except as set forth in Schedule
4.1(z), none of the Borrowers nor any of their respective Subsidiaries
has changed its name within the preceding five (5) years from the
Agreement Date, nor has any Borrower or any Subsidiary of a Borrower
transacted business under any other name or trade name.
(aa) Investment Company Act. None of the Borrowers nor any
of their respective Subsidiaries is required to register under the
provisions of the Investment Company Act of 1940, as amended, and
neither the entering into or performance by any Borrower of this
Agreement nor the issuance of the Notes violates any provision of such
Act or requires any consent, approval, or authorization of, or
registration with, any governmental or public body or authority
pursuant to any of the provisions of such Act.
(bb) Holding Company Status. The Parent does not own or
lease, directly or indirectly, any real, personal, intangible or
tangible property of any nature, other than such Capital Stock of Bull
Run, and the Parent does not conduct, transact or otherwise engage in
any business or operations other than those incidental to the ownership
of such Capital Stock of Bull Run. Datasouth does not own any material
assets other than the AMT Note and Capital Stock of Xxxx Communications
System, Inc.
Section 4.2 Representations and Warranties Relating to Accounts.
With respect to all Accounts which are identified or included on any Schedule,
Borrowing Base Certificate or other report as Eligible Accounts, each Borrower
hereby warrants and represents to the Administrative Agent and the Lenders to
the best of their knowledge that:
(a) They are genuine and in all respects what they
purport to be, and they are not evidenced by judgments;
(b) They arise out of completed, bona fide sales of goods
or rendition of services by the Borrowers in the ordinary course of
their business and in accordance with the terms and conditions of all
purchase orders, contracts or other documents relating thereto and
forming a part of the contract between the Borrowers and the Account
Debtors;
(c) They are for liquidated amounts maturing as stated in
the duplicate invoice covering such sale or rendition of services,
copies of which have been furnished or are available to the
Administrative Agent;
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(d) None of the Borrowers has made an agreement with any
Account Debtor thereunder for any deduction therefrom, except discounts
or allowances which are granted by the Borrowers in the ordinary course
of their business for prompt payment or volume purchases and which are
reflected in the calculation of the net amount of each respective
invoice related thereto;
(e) There are no facts, events or occurrences of which
the Borrowers have knowledge which in any way impair the validity or
enforceability thereof or which will reduce the amount payable
thereunder from the face amount of the invoice and statements delivered
to the Administrative Agent with respect thereto;
(f) To the best of the Borrowers' knowledge, the Account
Debtors thereunder (i) had the capacity to contract at the time any
contract or other document giving rise to the Accounts were executed
and (ii) such Account Debtors are solvent; and
(g) None of the Borrowers has knowledge of any fact or
circumstance which would impair the validity or collectibility of the
Accounts, and to the best of the Borrowers' knowledge, there are no
proceedings or actions which are threatened or pending against any
Account Debtor thereunder which might result in any material adverse
change in such Account Debtor's financial condition or the
collectibility of such Account.
Section 4.3 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date and the
date of each Advance or issuance of a Letter of Credit hereunder, except to the
extent previously fulfilled in accordance with the terms hereof and to the
extent subsequently inapplicable. All representations and warranties made under
this Agreement shall survive, and not be waived by, the execution hereof by the
Lenders, the Issuing Banks and the Administrative Agent, any investigation or
inquiry by any Lender or the Administrative Agent or the making of any Advance
or issuance of a Letter of Credit under this Agreement.
ARTICLE 5
GENERAL COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Borrowers shall have the right to borrow, or to have a Letter of Credit issued,
hereunder (whether or not the conditions to borrowing have been or can be
fulfilled), and unless all of the Lenders shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Each
Borrower will, and will cause each of its Subsidiaries to, (i) except as
provided in Section 7.7 hereof, preserve and maintain its existence, rights,
franchises, licenses, and privileges in its jurisdiction of incorporation,
including, without limitation, all Necessary Authorizations material to its
business, and (ii) qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of
their respective business requires such qualification or authorization.
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Section 5.2 Compliance with Applicable Law. Each Borrower will
comply, and will cause each of its Subsidiaries to comply, in all material
respects with the requirements of all Applicable Laws.
Section 5.3 Maintenance of Properties. Each Borrower will
maintain, and will cause each of its Subsidiaries to maintain, or cause to be
maintained in the ordinary course of business in good repair, working order, and
condition, normal wear and tear and disposal of obsolete equipment excepted, all
properties used or useful in their respective businesses (whether owned or held
under lease), and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments, and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. Each
Borrower will maintain, and will cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with GAAP, and
will keep, and will cause each of its Subsidiaries to keep, adequate records and
books of account in which complete entries will be made in accordance with such
accounting principles consistently applied and reflecting all transactions
required to be reflected by such accounting principles.
Section 5.5 Insurance. Each Borrower will maintain, and will
cause each of its Subsidiaries to maintain, insurance including, but not limited
to, public liability, product liability, business interruption, and fidelity
coverage insurance, in such amounts and against such risks as would be customary
for companies in the same industry and of comparable size as such Borrower from
responsible companies having and maintaining an A.M. Best rating of "A minus" or
better and being in a size category of VI or larger or otherwise acceptable to
the Administrative Agent. In addition to the foregoing, each Borrower further
agrees to maintain and pay for insurance upon all goods constituting Collateral
wherever located, in storage or in transit in vehicles, including goods
evidenced by documents, covering casualty, hazard, public liability, and such
other risks and in such amounts as would be customary for companies in the same
industry and of comparable size as such Borrower, from responsible companies
having and maintaining an A.M. Best rating of "A minus" or better and being in a
size category of VI or larger or otherwise acceptable to the Administrative
Agent to insure its interest and the interest of the Lenders in such Collateral.
All such property insurance policies shall name the Administrative Agent as loss
payee and all liability insurance policies shall name the Administrative Agent
as additional insured. Each Borrower shall deliver the original certificates of
insurance evidencing that the required insurance is in force together with
satisfactory lender's loss payable and additional insured, as applicable,
endorsements. Each policy of insurance or endorsement shall contain a clause
requiring the insurer to give not less than thirty (30) days' prior written
notice to the Administrative Agent in the event of cancellation or modification
of the policy for any reason whatsoever and a clause that the interest of the
Administrative Agent shall not be impaired or invalidated by any act or neglect
of any Borrower or owner of the Collateral nor by the occupation of the premises
for purposes more hazardous than are permitted by said policy. If any Borrower
fails to provide and pay for such insurance, the Administrative Agent may, at
the Borrowers' expense, procure the same, but shall not be required to do so.
Each Borrower agrees to deliver to the Administrative Agent, promptly as
rendered, true copies of all reports made in any reporting forms to insurance
companies.
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Section 5.6 Payment of Taxes and Claims. Each Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments, and governmental charges or levies imposed upon it or upon
its incomes or profits or upon any properties belonging to it prior to the date
on which penalties attach thereto, and all lawful claims for labor, materials
and supplies which have become due and payable and which by law have or may
become a Lien upon any of its Property, except that, no such tax, assessment,
charge, levy, or claim need be paid which is being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy, or claim does not become a Lien or charge other than a Permitted
Lien, and no foreclosure, distraint, sale, or similar proceedings shall have
been commenced and remain unstayed for a period thirty (30) days after such
commencement. Each Borrower shall timely file and shall cause each of its
Subsidiaries timely to file, all information returns required by federal, state,
or local tax authorities.
Section 5.7 Visits and Inspections. Each Borrower will permit,
and will cause each of its Subsidiaries to permit, representatives of the
Administrative Agent, the Issuing Banks and the Lenders, upon at least 24 hours
notice to the Borrowers, or, upon the occurrence of a Default, without notice,
to (a) visit and inspect the properties of such Borrower and each of such
Borrower's Subsidiaries, (b) inspect and make extracts from and copies of its
books and records, and (c) discuss with its principal officers its businesses,
assets, liabilities, financial positions, results of operations, and business
prospects relating to the Borrowers. In addition to the foregoing, the Lenders
and their respective officers, employees and agents shall have the right, from
time to time in their sole discretion and at the sole expense of the Borrowers,
to conduct field audits with respect to the Collateral.
Section 5.8 Conduct of Business. Each Borrower shall continue,
and shall cause each of its Subsidiaries to continue, to engage in business of
the same general type as now respectively conducted by it.
Section 5.9 ERISA. Each Borrower shall at all times make, or
cause to be made, prompt payment of contributions required to meet the minimum
funding standards set forth in ERISA with respect to its and its ERISA
Affiliates' Plans; furnish to the Administrative Agent, promptly upon the
Administrative Agent's request therefor, copies of any annual report required to
be filed pursuant to ERISA in connection with each such Plan of it and its ERISA
Affiliates; notify the Administrative Agent as soon as practicable of any
Reportable Event and of any additional act or condition arising in connection
with any such Plan which such Borrower believes might constitute grounds for the
termination thereof by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a trustee to
administer such Plan; and furnish to the Administrative Agent, promptly upon the
Administrative Agent's request therefor, such additional information concerning
any such Plan as may be requested by the Administrative Agent.
Section 5.10 Lien Perfection. Each Borrower agrees to take any
action as may be required to perfect or continue the perfection of the
Administrative Agent's (on its behalf and on behalf of the Issuing Banks and the
Lenders) security interest in the Collateral. Each Borrower hereby authorizes
the Administrative Agent to execute and file any such financing statement on
such Borrower's or such Subsidiary's behalf to the extent permitted by
Applicable Law.
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Section 5.11 Location of Collateral; Consignment of Inventory. All
tangible Collateral, other than "Inventory" (as defined under the Prior Credit
Agreement) in-transit and "Inventory" (as defined under the Prior Credit
Agreement) sold in the ordinary course of business, has, at all times, been kept
by the Borrowers at one or more of the business locations of the Borrowers set
forth in Schedule 5.11. The Administrative Agent's (on behalf of itself and on
behalf of the Issuing Banks and the Lenders) security interest in such Inventory
is and continues to be a duly perfected, first priority Lien thereon; neither
the Borrowers' nor the Administrative Agent's right of entry upon the premises
where such Inventory is stored or its right to remove the Inventory therefrom,
is in any way restricted; the owner of such premises, and any bailee,
warehouseman or similar party that will be in possession of such Inventory,
shall have executed and delivered to the Administrative Agent an agreement, in
form and substance reasonably acceptable to the Administrative Agent, waiving
any landlord's, bailee's, warehouseman's or other Lien in respect of the
Inventory for unpaid rent or storage charges; and all negotiable documents and
receipts in respect of any Collateral maintained at such premises are promptly
delivered to the Administrative Agent.
Section 5.12 Protection of Collateral. All insurance expenses and
expenses of protecting, storing, warehousing, insuring, handling, maintaining
and shipping the Collateral (including, without limitation, all rent payable by
any Borrower to any landlord of any premises where any of the Collateral may be
located), and any and all excise, property, sales, and use taxes imposed by any
state, federal, or local authority on any of the Collateral or in respect of the
sale thereof, shall be borne and paid by the Borrowers. If any Borrower fails to
promptly pay any portion thereof when due, the Lenders may, at their option, but
shall not be required to, make a Base Rate Advance for such purpose and pay the
same directly to the appropriate Person. The Borrowers agree to reimburse the
Lenders promptly therefor with interest accruing thereon daily at the Default
Rate provided in this Agreement. All sums so paid or incurred by the Lenders for
any of the foregoing and all reasonable costs and expenses (including attorneys'
fees, legal expenses, and court costs) which the Lenders may incur in enforcing
or protecting the Lien on or rights and interest in the Collateral or any of its
rights or remedies under this or any other agreement between the parties hereto
or in respect of any of the transactions to be had hereunder until paid by the
Borrowers to the Lenders with interest at the Default Rate, shall be considered
Obligations owing by the Borrowers to the Lenders hereunder. Such Obligations
shall be secured by all Collateral and by any and all other collateral,
security, assets, reserves, or funds of any Borrower in or coming into the hands
or inuring to the benefit of the Lenders. Neither the Administrative Agent nor
the Lenders shall be liable or responsible in any way for the safekeeping of any
of the Collateral or for any loss or damage thereto (except for reasonable care
in the custody thereof while any Collateral is in the Administrative Agent's or
the Lenders' actual possession) or for any diminution in the value thereof, or
for any act or default of any warehouseman, carrier, forwarding agency, or other
person whomsoever, but the same shall be at the Borrowers' sole risk.
Section 5.13 Assignments and Records of Accounts. If so requested
by the Administrative Agent following an Event of Default, each Borrower shall
execute and deliver to the Administrative Agent formal written assignments of
all of the Accounts daily, which shall include all Accounts that have been
created since the date of the last assignment, together with copies of invoices
or invoice registers related thereto. Each Borrower shall keep accurate and
complete records of the Accounts and all payments and collections thereon.
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Section 5.14 Administration of Accounts.
(a) The Administrative Agent retains the right after the
occurrence of an Event of Default to notify the Account Debtors that
the Accounts have been assigned to the Administrative Agent and to
collect the Accounts directly in its own name and to charge the
collection costs and expenses, including, without limitation,
attorneys' fees, to the Borrowers. The Administrative Agent has no duty
to protect, insure, collect or realize upon the Accounts or preserve
rights in them. Each Borrower hereby irrevocably makes, constitutes,
and appoints the Administrative Agent as such Borrower's true and
lawful attorney and agent-in-fact to endorse such Borrower's name on
any checks, notes, drafts or other payments relating to, the Accounts
which come into the Administrative Agent's possession or under the
Administrative Agent's control as a result of its taking any of the
foregoing actions. Additionally, the Administrative Agent shall have
the right to collect and settle or adjust all disputes and claims
directly with the Account Debtor and to compromise the amount or extend
the time for payment of the Accounts upon such terms and conditions as
the Administrative Agent may deem advisable, and to charge the
deficiencies, reasonable costs, and expenses thereof, including,
without limitation, attorney's fees, to the Borrowers.
(b) If an Account includes a charge for any tax payable
to any governmental taxing authority, the Lenders are authorized, in
their sole discretion, to pay the amount thereof to the proper taxing
authority for the account of the Borrowers and to make a Base Rate
Advance to the Borrowers to pay therefor. The Borrowers shall notify
the Administrative Agent if any Account includes any tax due to any
governmental taxing authority and, in the absence of such notice, the
Administrative Agent shall have the right to retain the full proceeds
of the Account and shall not be liable for any taxes to any
governmental taxing authority that may be due by any Borrower by reason
of the sale and delivery creating the Account.
(c) After a Default or an Event of Default has occurred,
any of the Administrative Agent's officers, employees or agents shall
have the right, at any time or times hereafter, in the name of the
Lenders, or any designee of the Lenders or the Borrowers, to verify the
validity, amount or other matter relating to any Accounts by mail,
telephone, telegraph or facsimile. Each Borrower shall cooperate fully
with the Administrative Agent and the Lenders in an effort to
facilitate and promptly conclude any such verification process.
Section 5.15 Bank Accounts. All bank accounts of the Borrowers are
listed on Schedule 5.15 and such schedule designates which such accounts are
deposit accounts. After the Agreement Date, none of the Borrowers shall open any
other deposit account without the written consent of the Administrative Agent.
Section 5.16 Further Assurances. Each Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of any of the Notes
and the execution and delivery of the Loan Documents (including this Agreement),
resulting from any act or failure to act by any Borrower or any Subsidiary of
any Borrower or any employee or officer thereof. The Borrowers, at their sole
expense, will promptly execute and deliver to the Administrative Agent
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and the Lenders, or cause to be executed and delivered to the Administrative
Agent and the Lenders, all documents necessary to pledge to the Administrative
Agent for its benefit and the benefit of the Issuing Banks and the Lenders, any
assets of the Borrowers and their Subsidiaries hereafter acquired or which
hereafter become unencumbered, and all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the
covenants and agreements of the Borrowers in the Loan Documents, including,
without limitation, this Agreement, or to correct any omissions in the Loan
Documents, or more fully to state the obligations set out herein or in any of
the Loan Documents, or to obtain any consents, all as may be reasonably
necessary or appropriate in connection therewith or as may be reasonably
requested.
Section 5.17 Broker's Claims. Each Borrower hereby indemnifies and
agrees to hold each of the Administrative Agent, the Issuing Banks and each of
the Lenders harmless from and against any and all losses, liabilities, damages,
costs, and expenses which may be suffered or incurred by the Administrative
Agent, the Issuing Banks or any of the Lenders in respect of any claim, suit,
action or cause of action now or hereafter asserted by a broker or any Person
acting in a similar capacity arising from or in connection with the execution
and delivery of this Agreement or any other Loan Document or the consummation of
the transactions contemplated herein or therein.
Section 5.18 Indemnity. Each Borrower will indemnify and hold
harmless each of the Administrative Agent, the Issuing Banks and each of the
Lenders and each of their respective employees, representatives, officers and
directors from and against any and all claims, liabilities, investigations,
losses, damages, actions, and demands by any party against the Administrative
Agent, the Issuing Banks and the Lenders, or any of them, resulting from any
breach or alleged breach by any Borrower of any representation or warranty made
hereunder, or otherwise arising out of the Commitments or the making,
administration or enforcement of the Loan Documents and the Loans, unless, with
respect to any of the above, the Administrative Agent, the Issuing Banks and the
Lenders, or any of them, are finally judicially determined to have acted or
failed to act with gross negligence or willful misconduct. This Section 5.18
shall survive termination of this Agreement.
Section 5.19 Environmental Matters. The conduct of each of the
Borrowers' and their respective Subsidiaries' business operations will not
violate any Environmental Laws in any material respect, and none of the
Borrowers will use, or permit any other party to use, any Hazardous Materials at
any of its places of business except such materials as are incidental to such
Borrower's or such Subsidiary's normal course of business, maintenance and
repairs, and then only in compliance with all applicable Environmental Laws.
Each Borrower shall apply for and/or timely renew all permits required for the
business operations at its places of business or otherwise. The Borrowers shall
promptly notify the Administrative Agent in writing of (i) any and all
enforcement, cleanup, remedial, removal, or other governmental or regulatory
actions instituted, completed or threatened in writing pursuant to any
applicable Environmental Law; and (ii) all claims made or threatened by any
third party against any Borrower or any Subsidiary of any Borrower relating to
damages, contribution, cost recover compensation, loss or injury resulting from
any Hazardous Materials which, in either case, could reasonably be expected to
result in liability under Environmental Laws in excess of $50,000. The Borrowers
shall promptly notify the Administrative Agent of any remedial action taken by
any Borrower or any
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Subsidiary of any Borrower pursuant to Environmental Laws with respect to such
Borrower's or such Subsidiary's business operations. Upon the request of the
Administrative Agent, the Borrowers shall arrange to have conducted by auditors,
reasonably acceptable to the Administrative Agent, environmental audits with
respect to the Property of the Borrowers and shall provide to the Administrative
Agent copies of such environmental audits, which shall be satisfactory to the
Administrative Agent in all respects.
Section 5.20 [Reserved.]
Section 5.21 Formation of Subsidiaries. At the time of the
formation of any direct or indirect Subsidiary of any Borrower or the
acquisition of any Subsidiary of any Borrower after the Agreement Date to the
extent permitted by this Agreement, such Borrower and its Subsidiaries, as
appropriate, shall (a) with respect to any new domestic Subsidiary of the
Borrower, provide to the Administrative Agent a Subsidiary Guaranty, Subsidiary
Security Agreement, and such other security documents or supplements to existing
security documents, together with appropriate UCC-1 financing statements, all in
form and substance reasonably satisfactory to the Administrative Agent, (b) with
respect to each new Subsidiary of any Borrower, a pledge agreement, together
with original stock certificates or other instruments and appropriate transfer
powers and UCC-1 financing statements, pledging such Borrower's and any
Subsidiary of such Borrower's direct or beneficial ownership interest in such
Subsidiary, in form and substance reasonably satisfactory to the Administrative
Agent (and with respect to foreign Subsidiaries limited to 65% of the Capital
Stock or other ownership interest in any foreign Subsidiary), and (c) with
respect to each new Subsidiary of any Borrower, provide all other documentation,
including one or more opinions of counsel satisfactory to the Administrative
Agent which in its reasonable opinion is appropriate with respect to such
formation and the execution and delivery of the applicable documentation
referred to above. Any such document, agreement or instrument executed or issued
pursuant to this Section 5.21 shall be a "Loan Document" for purposes of this
Agreement.
Section 5.22 E&Y Litigation. In the event that the Parent receives
any proceeds in connection with the E&Y Litigation, the Parent shall immediately
contribute such proceeds to Bull Run for prepayment of the Loans, and Bull Run
shall use such proceeds (less any related reasonable fees and expenses in
connection therewith) to make such prepayment, pursuant to Section 2.6(d)(iv)
hereof.
ARTICLE 6
INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Borrowers have a right to borrow, or to have Letters of Credit issued, hereunder
(whether or not the conditions to borrowing have been or can be fulfilled) and
unless all of the Lenders shall otherwise consent in writing, the Borrowers will
furnish or cause to be furnished to each Lender and to the Administrative Agent
at their respective offices:
Section 6.1 Monthly Financial Statements and Information. Within
thirty (30) days after the last day of each fiscal month in each fiscal year of
the Parent (except those months ending on the last day of each fiscal quarter),
the balance sheet of the Parent as at the end of such
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fiscal month, and the related statement of income and retained earnings for such
fiscal month and for the elapsed portion of the year ended with the last day of
such fiscal month, all of which shall be certified by an Authorized Signatory to
be, in his or her opinion, complete and correct in all material respects and to
present fairly in accordance with GAAP the financial position of the Parent, as
at the end of such period and the results of operations for such period, and for
the elapsed portion of the fiscal year ended with the last day of such period,
subject only to normal year-end adjustments.
Section 6.2 Quarterly Financial Statements and Information.
Within forty-five (45) days after the last day of each fiscal quarter in each
fiscal year of the Parent beginning with the fiscal quarter ending November 30,
2002, the balance sheet of the Parent as at the end of such fiscal quarter, and
the related statement of income and retained earnings and related statement of
cash flows for such fiscal quarter and for the elapsed portion of the year ended
with the last day of such fiscal quarter, which financial statements shall set
forth in comparative form such figures as at the end of such fiscal quarter
during the previous fiscal year and for such fiscal quarter during the previous
fiscal year, all of which shall be on a consolidated and consolidating basis
with the Parent's Subsidiaries and shall be certified by an Authorized Signatory
to be, in his or her opinion, complete and correct in all material respects and
to present fairly in accordance with GAAP the financial position of the Parent,
as at the end of such period and the results of operations for such period, and
for the elapsed portion of the fiscal year ended with the last day of such
period, subject only to normal year-end adjustments. Such financial statements
for the two months ended August 31, 2002, shall be delivered no later than
November 15, 2002.
Section 6.3 Annual Financial Statements and Information;
Certificate of No Default. Within one hundred and seven (107) days after the end
of the fiscal year of the Parent ended June 30, 2002, and within ninety (90)
days after the end of each fiscal year of the Parent thereafter, the audited
balance sheet of the Parent as at the end of such year, all of which shall be on
a consolidated basis with the Parent's Subsidiaries, and the related audited
statements of income and retained earnings and related audited statements of
cash flows for such year, which financial statements shall set forth in
comparative form such figures as at the end of and for the previous year, and
shall be accompanied by an opinion of independent certified public accountants
of recognized standing satisfactory to the Administrative Agent, stating that
such financial statements are unqualified and prepared without deviation from
GAAP, without any explanatory paragraphs, together with consolidating statements
prepared by the Parent and a statement of the chief financial officers of the
Parent and Bull Run certifying that no Default or Event of Default, including,
without limitation, any Default under Sections 7.8, 7.9, 7.10 and 7.11 hereof,
was detected during the examination of the Parent and the Borrowers.
Section 6.4 Performance Certificates. At the time the financial
statements are furnished pursuant to Section 6.2 with respect to each fiscal
quarter end and Section 6.3 with respect to each fiscal year end, a certificate
of an Authorized Signatory of the Parent, in the form of Exhibit X attached
hereto:
(a) Setting forth as at the end of such quarter or year,
as the case may be, the arithmetical calculations required to establish
whether or not the Borrowers were in compliance with the requirements
of Sections 7.8, 7.9 and 7.10 hereof; and
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(b) Stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such quarter
or year, as the case may be, or, if a Default or an Event of Default
has occurred, disclosing each such Default or Event of Default and its
nature, when it occurred, whether it is continuing, and the steps being
taken by the Borrowers with respect to such Default or Event of
Default.
Section 6.5 Access to Accountants. The Parent and each of the
Borrowers hereby (i) authorize the Administrative Agent to communicate with
their independent public accountants through requests made through the chief
financial officers of the Parent or any of the Borrowers, respectively, and (ii)
authorize these accountants to disclose to the Administrative Agent any and all
financial statements and other supporting financial data, including matters
relating to the annual audit and copies of any arrangement letter with respect
to its business, financial condition and other affairs. On or before the
Agreement Date, the Parent and each of the Borrowers shall deliver to its
independent public accountant a letter authorizing such accountants to comply
with the provisions of this Section 6.5.
Section 6.6 Additional Reports.
(a) Promptly after preparation thereof, but no later than
fifteen (15) days after the end of each month (and if such day is not a
Business Day, on the next succeeding Business Day thereafter), the
Borrowers shall deliver to the Administrative Agent and to any Lender
requesting the same, a Borrowing Base Certificate as of the last day of
the preceding month, which shall be in such form as shall be
satisfactory to the Administrative Agent, setting forth the Eligible
Accounts and a categorical breakdown of all Accounts as of such last
day of such month. Notwithstanding the foregoing, during the period of
any Xxxxxxxx Collateral Event, the Borrowers shall not be required to
deliver Borrowing Base Certificates pursuant to this Section 6.6(a);
provided, however, that once such period has ended, the Borrowers shall
deliver to the Administrative Agent and any Lender requesting the same
a Borrowing Base Certificate within fifteen (15) days after the end of
the then current month, and then, in accordance with the first sentence
of this Section 6.6(a).
(b) Within five (5) Business Days after the end of each
month, the Borrowers shall deliver to the Administrative Agent and to
any Lender requesting the same, in form acceptable to the
Administrative Agent, a detailed aged trial balance of all Accounts
existing as of the last day of the preceding month, specifying the
names, addresses, face value, dates of invoices and due dates for each
Account Debtor obligated on an Account so listed and all other
information necessary to calculate Eligible Accounts as of such last
day of the preceding month and, within fifteen (15) days of the
Administrative Agent's request therefor (but no sooner than fifteen
(15) days following the end of any month), copies of proof of delivery
and the original copy of all documents, including, without limitation,
repayment histories and present status reports relating to the Accounts
so scheduled and such other matters and information relating to the
status of then existing Accounts as the Administrative Agent shall
request.
(c) Promptly upon receipt thereof, the Parent and the
Borrowers shall deliver to the Administrative Agent and the Lenders
copies of all final reports, if any, submitted
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to the Parent or any Borrower by its independent public accountants in
connection with any annual or interim audit of any of the Parent, the
Borrowers or any of their respective Subsidiaries, including, without
limitation, any final management report prepared in connection with the
annual audit referred to in Section 6.3 hereof.
(d) Within sixty (60) days after the commencement of each
of the Borrowers' fiscal years, the Borrowers shall deliver to the
Administrative Agent and the Lenders the annual operating plan for the
Borrowers and their Subsidiaries, which plan has been approved by the
Borrowers' board of directors, including, without limitation, an annual
budget for the Borrowers and their Subsidiaries, including forecasts of
the income statement, the balance sheet and an operating profit and
cash flow statement for the immediately succeeding year on a month by
month basis.
(e) To initiate the beginning of a Xxxxxxxx Collateral
Event, Xxxxxxxx or any Borrower shall deliver to the Administrative
Agent a Xxxxxxxx Notice certifying that a Xxxxxxxx Collateral Event has
occurred and is continuing, provided, that, in order for the applicable
Interest Rate Margin to be in effect on such Business Day, the
Administrative Agent must receive such Xxxxxxxx Notice prior to 11:00
a.m. (Eastern time) on such Business Day. During any period a Xxxxxxxx
Collateral Event is occurring, Xxxxxxxx or any Borrower shall deliver
to the Administrative Agent on the penultimate Business Day of each
month during which such Xxxxxxxx Collateral Event is continuing a
Xxxxxxxx Notice certifying that such Xxxxxxxx Collateral Event is
continuing. Within three (3) Business Days of such Xxxxxxxx Collateral
Event terminating, Xxxxxxxx or any Borrower shall deliver to the
Administrative Agent a Xxxxxxxx Notice certifying that such Xxxxxxxx
Collateral Event has terminated.
(f) To the extent not covered elsewhere in this Article
6, promptly after the sending thereof, the Borrowers shall deliver to
the Administrative Agent and the Lenders copies of all financial
statements, reports and other information which any of the Parent, the
Borrowers or any of their respective Subsidiaries sends to any holder
of its Indebtedness (including the Subordinated Debt) or its securities
or which any of the Parent, the Borrowers or any of their respective
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange.
(g) From time to time and promptly upon each request, the
Borrowers shall deliver to the Administrative Agent, on behalf of
itself and on behalf of the Lenders, such data, certificates, reports,
statements, opinions of counsel, documents, or further information
regarding the business, assets, liabilities, financial position,
projections, results of operations, or business prospects of the
Parent, any of the Borrowers or any of their respective Subsidiaries as
the Administrative Agent or any Lender may reasonably request.
Section 6.7 Notice of Litigation and Other Matters.
(a) Within fifteen (15) Business Days of the Parent's or
any Borrower's obtaining knowledge of the institution of, or written
threat of, any action, suit, governmental investigation or arbitration
proceeding against the Parent, any of the
70
Borrowers or any of their respective Subsidiaries or any Property,
which action, suit, governmental investigation or arbitration
proceeding exposes, in the Borrowers' reasonable judgment, the Parent,
any Borrower or any Subsidiary of any Borrower to liability in an
aggregate amount in excess of $200,000, the Parent and the Borrowers
shall notify the Administrative Agent and the Lenders of the occurrence
thereof, and the Parent and the Borrowers shall provide such additional
information with respect to such matters as the Administrative Agent or
the Lenders may reasonably request.
(b) Promptly upon, but in no event later than two (2)
Business Days after, the occurrence of any default (whether or not the
Parent or any Borrower has received notice thereof from any other
Person) on Indebtedness of the Parent, any Borrower or any Subsidiary
of any Borrower which singly, or in the aggregate exceeds $200,000, the
Parent and the Borrowers shall notify the Administrative Agent and the
Lenders of the occurrence thereof.
(c) Promptly upon, but in no event later than two (2)
Business Days after, the occurrence of any default on any Indebtedness
of any Person owed to the Parent or any Borrower, which singly or in
the aggregate exceeds $200,000, the Parent and the Borrowers shall
notify the Administrative Agent and the Lenders of the occurrence
thereof.
(d) Promptly upon, but in no event later than two (2)
Business Days after, any Borrower's receipt of notice or the pendency
of any proceeding for the condemnation or other taking of any real
property of any Borrower or any Subsidiary of any Borrower, the
Borrowers shall notify the Administrative Agent and the Lenders of the
occurrence thereof.
(e) Promptly upon, but in no event later than two (2)
Business Days after, any Borrower's receipt of notice of any material
adverse change with respect to the business, assets, liabilities,
financial position, or results of operations of the Borrowers and their
Subsidiaries taken as a whole, other than changes in the ordinary
course of business which have not had and are not likely to have a
Materially Adverse Effect, the Borrowers shall notify the
Administrative Agent and the Lenders of the occurrence thereof.
(f) Promptly following, but in no event later than two
(2) Business Days after, any material amendment or change to the budget
submitted to the Administrative Agent and the Lenders pursuant to
Section 6.6(d) hereof, the Borrowers shall notify the Administrative
Agent and the Lenders of the occurrence thereof.
(g) Promptly following, but in no event later than two
(2) Business Days after, any (i) Default under any Loan Document, or
(ii) default under any other agreement (other than those referenced in
Section 6.7(b) or clause (i) of this Section 6.7(g) above) to which any
Borrower or any Subsidiary of any Borrower is a party or by which any
of their respective properties is bound which could reasonably be
expected to have a Materially Adverse Effect, then the Borrowers shall
notify the Administrative Agent and the Lenders of the occurrence
thereof giving in each case the details thereof and specifying the
action proposed to be taken with respect thereto.
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(h) Promptly following, but in no event later than two
(2) Business Days after, the occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) with respect to any Plan of any
Borrower or any of its ERISA Affiliates or the institution or
threatened institution by the Pension Benefit Guaranty Corporation of
proceedings under ERISA to terminate or to partially terminate any such
Plan or the commencement or threatened commencement of any litigation
regarding any such Plan or naming it or the trustee of any such Plan
with respect to such Plan (other than claims for benefits in the
ordinary course of business), the Borrowers shall notify the
Administrative Agent and the Lenders of the occurrence thereof.
(i) Promptly upon, but in no event later than two (2)
Business Days after, the receipt by any Borrower of a notice under the
AMT Subordination Agreement, the Borrowers shall deliver a copy of such
notice to the Administrative Agent.
Article 7
NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Borrowers have a right to borrow, or to have Letters of Credit issued, hereunder
(whether or not the conditions to borrowing have been or can be fulfilled) and
unless all of the Lenders shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness. None of the Parent or the Borrowers
will create, assume, incur, or otherwise become or remain obligated in respect
of, or permit to be outstanding, or permit any of their respective Subsidiaries
to create, assume, incur, or otherwise become obligated in respect of, or permit
to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement and the other Loan
Documents;
(b) the Subordinated Debt;
(c) Trade or accounts payable and/or similar obligations,
and accrued expenses, incurred in the ordinary course of business,
other than for borrowed money;
(d) Indebtedness secured by Permitted Liens described in
clause (f) of the definition of Permitted Liens set forth in Article 1
hereof and Capitalized Lease Obligations, collectively, not to exceed
the aggregate principal amount of $300,000 at any time;
(e) Guaranties permitted by Section 7.2;
(f) Obligations under Interest Hedge Agreements with
respect to notional amounts not to exceed the outstanding principal
amount of the Loans;
(g) Other unsecured Indebtedness incurred by any Borrower
not to exceed $200,000 in the aggregate for all Borrowers outstanding
from time to time;
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(h) Indebtedness (i) of any Borrower to any other
Borrower or to any Subsidiary of any Borrower which has executed a
Subsidiary Security Agreement and a Subsidiary Guaranty and (ii) of any
Subsidiary to any Borrower or any other Subsidiary of any Borrower
which has executed a Subsidiary Security Agreement and a Subsidiary
Guaranty;
(i) At any time after exercise of the Call Option and
payment of the Purchase Price (as defined in the Xxxxxxxx Guaranty),
Indebtedness in favor of Xxxxxxxx resulting from the exercise of the
Call Option;
(j) (A) Extensions, renewals and replacements of
Indebtedness permitted under paragraphs (b), (g) and (h) of this
Section 7.1 that do not, in any case, (i) increase the outstanding
principal amount thereof or (ii) result in an earlier maturity date or
decreased weighted average life thereof, and (B) extensions, renewals
and replacements of Indebtedness permitted under paragraph (i) of this
Section 7.1;
(k) Indebtedness evidenced by the Summit Subordinated
Notes; and
(l) Other subordinated Indebtedness incurred by the
Borrowers on terms and conditions acceptable to the Administrative
Agent in an amount not to exceed $12,500,000 less the Net Cash Proceeds
of any Capital Stock issued by the Parent, or any Borrower or any of
their Subsidiaries, which are not used to repay the Loans pursuant to
Section 2.6(d)(i) hereof.
Section 7.2 Guaranties. None of the Parent or the Borrowers will
at any time guarantee or enter into or assume any Guaranty, or be obligated with
respect to, or permit to be outstanding, any Guaranty, or permit any of their
respective Subsidiaries at any time to guarantee or enter into or assume any
Guaranty, or be obligated with respect to, or permit to be outstanding, any
Guaranty, in each case other than (a) obligations under repurchase agreements of
the Borrowers entered into in connection with the sale of products in the
ordinary course of business of the Borrowers, (b) obligations under agreements
of the Borrowers entered into in connection with the acquisition of services,
supplies, and equipment in the ordinary course of business of the Borrowers, (c)
endorsements of instruments in the ordinary course of business, (d) guaranties
of Indebtedness of the Borrowers and their Subsidiaries to the extent permitted
under Section 7.1, and (e) obligations identified on Schedule 7.2.
Section 7.3 Liens. None of the Parent or the Borrowers will
create, assume, incur, or permit to exist or to be created, assumed, or
permitted to exist, directly or indirectly, or permit any of their respective
Subsidiaries to create, assume, incur, or permit to exist or to be created,
assumed, or permitted to exist, directly or indirectly, any Lien on any of its
property, real or personal, now owned or hereafter acquired, except for
Permitted Liens.
Section 7.4 Restricted Payments and Purchases. None of the
Borrowers shall directly or indirectly declare or make, or permit any of their
respective Subsidiaries to directly or indirectly make, any Restricted Payment
or Restricted Purchase, or set aside any funds for any such purpose; provided,
however, (a) any Subsidiary of a Borrower may make Restricted Payments to such
Borrower; (b) so long as no Default then exists or would be caused thereby,
00
Xxxx Xxx may make distributions to the Parent (i) for the purpose of making
regularly scheduled interest payments due under the Subordinated Debt to the
extent permitted by the Subordinated Note, (ii) to make payments of principal
under the Subordinated Debt to the extent such payments are funded by Net Cash
Proceeds received by the Borrowers in connection with the (x) the issuance of
subordinated Indebtedness pursuant to Section 7.1(l) hereof and/or (y) the
issuance of Capital Stock of the Parent which is not required to repay the Loans
pursuant to Section 2.6(d)(i) hereof, and (iii) to pay (A) taxes and (B) other
administrative expenses not to exceed $100,000 in the aggregate in any fiscal
year; (c) any Borrower may make Restricted Payments to any other Borrower
provided that the Administrative Agent shall have received all supplements to
the Security Documents, original stock certificates and stock powers and such
other documents, instruments and agreements necessary to maintain the
Administrative Agent's Lien on the Collateral; (d) so long as (i) no Default or
Event of Default then exists or would be caused thereby, (ii) the Borrowers
shall provide to the Administrative Agent and the Lenders calculations
demonstrating pro forma compliance with Section 7.10 hereof after giving effect
to such purchase or payment, and (iii) the Borrowers shall prepay the Revolving
Loans to the extent required pursuant to Section 2.6(d)(iii) hereof, the
Borrowers may make the Summit Payment to the extent such payment is funded by
the Net Cash Proceeds of Capital Stock issued by the Parent or by any other form
of capital junior in payment to the Obligations issued upon terms acceptable to
the Administrative Agent.
Section 7.5 Investments. None of the Parent or the Borrowers will
make, or permit any of their respective Subsidiaries to make, any loan or
advance to, or otherwise acquire for consideration evidences of Indebtedness,
Capital Stock, partnership interests or other securities of or equity interests
in any third party (each, an "Investment"), except that (a) the Borrowers may
purchase or otherwise acquire and own and may permit any of their respective
Subsidiaries to purchase or otherwise acquire and own, (i) marketable, direct
obligations of the United States of America and its agencies maturing within
three hundred sixty-five (365) days of the date of purchase, (ii) commercial
paper issued by corporations, each of which shall (A) have a consolidated net
worth of at least $250,000,000, and (B) conduct substantially all of its
business in the United States of America, which commercial paper will mature
within one hundred eighty (180) days from the date of the original issue thereof
and is rated "P-1" or better by Xxxxx'x Investors Service, Inc., or "A-1+" or
better by Standard & Poor's Corporation, (iii) certificates of deposit maturing
within three hundred sixty-five (365) days of the date of purchase and issued by
a United States national or state bank having deposits totaling more than
$250,000,000, and whose short-term debt is rated "P-1" or better by Xxxxx'x
Investors Service, Inc. or "A-1+" or better by Standard & Poor's Corporation,
and (iv) up to $100,000 per institution and up to $1,000,000 in the aggregate in
(A) short-term obligations issued by any local commercial bank or trust company
located in those areas where the Borrowers conduct their business, whose
deposits are insured by the Federal Deposit Insurance Corporation, or (B)
commercial bank-insured money market funds, or any combination of investments
described in clauses (A) and (B); (b) the Borrowers may hold the Investments in
existence on the Agreement Date and described on Schedule 4.1(l), provided that
advances due from NCAA Football, Inc. in the ordinary course of business shall
not exceed the offsetting account payable to NCAA Football, Inc. by $500,000 at
any time; (c) the Borrowers may hold the Capital Stock of their respective
Subsidiaries in existence on the Agreement Date and Capital Stock or other
assets permitted pursuant to Section 7.7(d) hereof; (d) the Borrowers may make
loans to employees of the Borrowers in an aggregate amount not to exceed
$300,000 at any one time outstanding; (e) the
74
Borrowers may make payments in respect of Indebtedness permitted under Section
7.1 hereof; and (f) the Borrowers may make Investments in an amount not to
exceed $300,000 in the aggregate during any fiscal year period provided that, to
the extent applicable, the Administrative Agent shall have received all
supplements to the Security Documents, original stock certificates and stock
powers and such other documents, instruments and agreements necessary to
maintain the Administrative Agent's Lien on the Collateral.
Section 7.6 Affiliate Transactions. Except as set forth on
Schedule 7.6, none of the Borrowers shall enter into or be a party to, or permit
any of their respective Subsidiaries to enter into or be a party to, any
agreement or transaction with any Affiliate except in the ordinary course of and
pursuant to the reasonable requirements of such Borrower's or such Subsidiary's
business and upon fair and reasonable terms that are no less favorable to such
Borrower or to such Subsidiary than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate thereof, and on terms consistent with
the business relationship of such Borrower or such Subsidiary and such Affiliate
prior to the Agreement Date, if any.
Section 7.7 Liquidation; Change in Ownership, Name, or Year;
Disposition or Acquisition of Assets. None of the Borrowers shall, or permit any
of their respective Subsidiaries to, at any time:
(a) Liquidate or dissolve itself (or suffer any
liquidation or dissolution) or otherwise wind up its business;
(b) Sell, lease, abandon, transfer, trade or otherwise
dispose of, in a single transaction or a series of related
transactions, any assets (including any Capital Stock owned by such
Borrower or such Subsidiary), property or business, except for the sale
of Inventory in the ordinary course of business at the fair market
value thereof and for cash or cash equivalents and except for physical
assets used, consumed or otherwise disposed of in the ordinary course
of business, except
(i) the Borrowers may sell or otherwise dispose
of obsolete equipment with a sale value greater than $500,000
in the aggregate for all such assets that may be sold during
any year, so long as the Net Cash Proceeds from such sale are
applied to the Loans to the extent required by Section 2.6(d)
and any non-cash proceeds shall be pledged to the
Administrative Agent pursuant to the Security Agreement or
other document or agreement in form and substance reasonably
satisfactory to the Administrative Agent;
(ii) the Borrowers may transfer assets amongst
themselves; and
(iii) each Borrower may sell or dispose of
Collateral for cash proceeds only, provided, that, solely in
the case of this clause (iii), (w) no Default exists, or would
exist, after giving effect to such sale or disposition, (x)
such Borrower has provided the Administrative Agent with a
detailed proposal (a "Collateral Disposition Proposal") for
such sale or disposition in a form satisfactory to the
Administrative Agent, in its sole discretion, including,
without limitation, (1) identification of the Collateral to be
sold or disposed of, (2) the amount for
75
which such Borrower is selling or disposing such Collateral,
such amount not to be less than the fair market value of such
Collateral, and the projected Net Cash Proceeds therefrom, and
(3) the purchaser of such Collateral, (y) the Net Cash
Proceeds of such Collateral sale or disposition are applied in
accordance with Section 2.6(d)(ii) hereof, and (z) such
Borrower has obtained the consent of (1) the Administrative
Agent with respect to any Collateral Disposition Proposal
projected to generate Net Cash Proceeds not to exceed
$6,000,000 and any Collateral Disposition Proposal projected
to generate Net Cash Proceeds in an aggregate amount, which
when taken together with the Net Cash Proceeds of all previous
sales or dispositions since the Agreement Date pursuant to
this clause (iii), not to exceed $18,000,000, and (2) the
Administrative Agent and the Lenders with respect to any
Collateral Disposition Proposal projected to generate Net Cash
Proceeds exceeding $6,000,000 and any Collateral Disposition
Proposal projected to generate Net Cash Proceeds in an
aggregate amount, which when taken together with the Net Cash
Proceeds of all previous sales or dispositions since the
Agreement Date pursuant to this clause (iii), exceeding
$18,000,000, in each case, such consent not to be unreasonably
withheld.
The Administrative Agent shall respond to each Collateral Disposition
Proposal to the relevant Borrower not later than five (5) Business Days
after receipt thereof by the Administrative Agent.
(c) Become a partner or joint venturer with any third
party, or form any Subsidiary requiring cash investments of greater
than $1,000,000 in the aggregate;
(d) Acquire (i) all or any substantial part of the
assets, property or business of, or (ii) any assets that constitute a
division or operating unit of the business of, any other Person;
(e) Merge or consolidate with any other Person other than
another Borrower;
(f) Change its corporate, partnership or limited
liability company name or change its jurisdiction of incorporation
without giving the Administrative Agent thirty (30) days' prior written
notice of its intention to do so and complying with all requirements of
the Lenders in regard thereto;
(g) Change its year-end for accounting purposes from the
fiscal year ending August 31;
(h) Enter into any new business or make any material
change in any of such Borrower's business objectives, purposes and
operations; or
(i) Transfer its principal place of business or chief
executive office, or maintain warehouses or records with respect to
Accounts or Inventory, to or at any locations other than those at which
the same are presently kept or maintained, as set forth on Schedule
4.1(w) hereto, without giving the Administrative Agent thirty (30)
days' prior written notice of its intention to do so and complying with
all requirements of the Lenders in regard thereto.
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Section 7.8 Capital Expenditures. The Borrowers and their
Subsidiaries shall not make or incur in the aggregate any Capital Expenditures,
during the term of this Agreement, in excess of $600,000.
Section 7.9 Minimum Adjusted EBITDA. The Borrowers shall not
permit Adjusted EBITDA for each period set forth below to be less than the
amount set forth opposite such period:
Period Minimum Adjusted EBITDA
-------------------------------------- -----------------------
Three months ending November 30, 2002 $ 200,000
Six months ending February 28, 2003 $ 4,600,000
Nine months ending May 31, 2003 $ 5,900,000
Section 7.10 Minimum Net Worth. The Borrowers shall not permit the
Net Worth of the Parent, on a consolidated basis with its Subsidiaries, for each
period set forth below to be less than the amount set forth opposite as of such
period:
Period Minimum Net Worth
-------------------------------------- -----------------------
For the two (2) months ended August 31,
2002 and for fiscal $2,500,000
quarter ending November 30, 2002
From fiscal quarter ending February
28, 2003 and for each $4,000,000
fiscal quarter thereafter until the
Maturity Date
Section 7.11 Sales and Leasebacks. None of the Borrowers will
enter into, or permit any of their respective Subsidiaries to enter into, any
arrangement, directly or indirectly, with any third party whereby such Borrower
or such Subsidiary shall sell or transfer any property, real or personal,
whether now owned or hereafter acquired, and whereby such Borrower or such
Subsidiary shall then or thereafter rent or lease as lessee such property or any
part thereof or other property which such Borrower or such Subsidiary intends to
use for substantially the same purpose or purposes as the property sold or
transferred.
Section 7.12 Amendment and Waiver. None of the Parent or any
Borrower, without the prior written consent of all of the Lenders, shall enter
into any amendment of, or agree to or accept any waiver of (a) its certificate
of incorporation and by-laws, if such amendment or waiver would adversely affect
the rights of the Borrowers, the Administrative Agent, the Issuing Banks and the
Lenders, or any of them, (b) the Subordinated Note, (c) the AMT Note and the AMT
Subordination Agreement, (d) the Summit Subordinated Notes (except amendments
and waivers to the Summit Subordinated Notes in connection with the Summit
Payment, on terms and conditions satisfactory to the Lenders) and (e) any
documents or instruments evidencing any subordinated Indebtedness issued
pursuant to Section 7.1(l) hereof.
Section 7.13 ERISA Liability. None of the Borrowers nor any of
their respective Subsidiaries shall fail to meet all of the applicable minimum
funding requirements of ERISA and the Code, without regard to any waivers
thereof, and, to the extent that the assets of any of their
77
respective Plans would be less than an amount sufficient to provide all accrued
benefits payable under such Plans, shall make the maximum deductible
contributions allowable under the Code. None of the Borrowers nor any of their
respective Subsidiaries shall (a) become a participant in any Multiemployer Plan
after the Agreement Date, or (b) withdraw from any Multiemployer Plan if such
withdrawal would result in material liability to any Borrower or any Subsidiary
of a Borrower.
Section 7.14 Prepayments. Except as provided in Section 7.4
hereof, none of the Borrowers shall prepay, redeem, defease or purchase in any
manner, or deposit or set aside funds for the purpose of any of the foregoing,
make any payment in respect of principal of, or make any payment in respect of
interest on, any Funded Debt, except the Borrowers may (i) make regularly
scheduled payments of principal or interest required in accordance with the
terms of the instruments governing any Funded Debt permitted hereunder, and (ii)
make payments with respect to the Obligations; provided, however, that, except
as provided under Section 7.4 hereof, (a) the Borrowers shall not make any
payments or distributions to the Parent to be used, directly or indirectly, to
make payments or prepayments with respect to principal on the Subordinated Note,
or (b) make any direct or indirect payments or prepayments to any Person with
respect to principal on the Indebtedness evidenced by the Summit Subordinated
Notes.
Section 7.15 Negative Pledge. None of the Parent or the Borrowers
shall, directly or indirectly, or permit any of their respective Subsidiaries
to, enter into any agreement (other than the Loan Documents) with any Person
that prohibits or restricts or limits the ability of the Parent, any Borrower or
any Subsidiary of any Borrower to create, incur, pledge, or suffer to exist any
Lien upon any of its respective assets except with respect to purchase money
liens, Capitalized Lease Obligations and operating leases but only as to the
assets so purchased or leased, or restricts the ability of any Subsidiary to pay
Dividends to any Borrower.
Section 7.16 Holding Company Status. The Parent shall not conduct,
transact or otherwise engage in any business or operations other than those
incidental to the ownership of the Capital Stock of Bull Run.
Article 8
DEFAULT
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule, or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect
when made or deemed to have been made pursuant to Section 4.4 hereof;
(b) Any payment of any principal under any Note or any
reimbursement obligations with respect to any Letter of Credit payable
hereunder shall not be received by the Administrative Agent on the date
such payment is due, or any payment of any interest under any Note, or
any fees payable hereunder or under the other Loan
78
Documents, shall not be received by the Administrative Agent
within two (2) Business Days of the date such payment is due;
(c) The Parent, any Borrower or Xxxxxxxx shall default in
the performance or observance of any agreement or covenant contained in
Section 5.1, 5.5, 5.7, 5.19 or 5.22, or in Article 6 or Article 7
hereof, in the Xxxxxxxx Guaranty or in any Security Document;
(d) The Parent or any Borrower shall default in the
performance or observance of any other agreement or covenant contained
in this Agreement not specifically referred to elsewhere in this
Section 8.1, and such default, if curable, shall not be cured to all of
the Lenders' satisfaction within a period of thirty (30) days from the
earlier of (i) the date the Parent or any Borrower knew or should have
known of such default or (ii) written notice thereof having been given
to the Borrowers;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation
or warranty contained in any of the other Loan Documents (other than
this Agreement or the Security Documents or as otherwise provided in
this Section 8.1) which shall not be cured to all of the Lenders'
satisfaction within the applicable cure period, if any, provided for in
such Loan Document, or, if there is no applicable cure period set forth
in such Loan Document, within a period of fifteen (15) days from the
date of such default;
(f) There shall occur any Change in Control;
(g) There shall be entered a decree or order for relief
in respect of the Parent, any Borrower, or any of their respective
Subsidiaries, under the Bankruptcy Code, or any other applicable
federal or state bankruptcy law or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or
similar official of any of the Parent, any Borrower, or any of their
respective Subsidiaries, or of any substantial part of their respective
properties, or ordering the winding-up or liquidation of the affairs of
any of the Parent, any Borrower, or any of their respective
Subsidiaries, or an involuntary petition shall be filed against any of
the Parent, any Borrower, or any of their respective Subsidiaries, and
a temporary stay entered, and (i) such petition and stay shall not be
diligently contested, or (ii) any such petition and stay shall continue
undismissed for a period of thirty (30) consecutive days;
(h) Any of the Parent, any Borrower or any of their
respective Subsidiaries shall file a petition, answer, or consent
seeking relief under the Bankruptcy Code, or any other applicable
federal or state bankruptcy law or other similar law, or any of the
Parent, any Borrower, or any of their respective Subsidiaries, shall
consent to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment or taking of possession of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or
other similar official of the Parent, any of the Borrowers, or any of
their respective Subsidiaries, or of any substantial part of their
respective properties, or any of the Parent, any Borrower, or any of
their
79
respective Subsidiaries, shall fail generally to pay their respective
debts as they become due, or any of the Parent, any Borrower, or any of
their respective Subsidiaries, shall take any action in furtherance of
any such action;
(i) A final judgment (other than a money judgment fully
covered by insurance as to which the insurance company has acknowledged
coverage within thirty (30) days after notice thereof) shall be entered
by any court against any of the Borrowers or any of their respective
Subsidiaries for the payment of money which exceeds $200,000, or a
warrant of attachment or execution or similar process shall be issued
or levied against property of any of the Borrowers or any of their
respective Subsidiaries pursuant to a final judgment which, together
with all other such property of any of the Borrowers, or any of their
respective Subsidiaries, subject to other such process, exceeds in
value $200,000 in the aggregate, and if, within forty-five (45) days
after the entry, issue, or levy thereof, such judgment, warrant, or
process shall not have been paid or discharged or stayed pending
appeal, or if, after the expiration of any such stay, such judgment,
warrant, or process shall not have been paid or discharged;
(j) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with
respect to any Plan maintained by any of the Borrowers and their
respective ERISA Affiliates, or to which any of the Borrowers or any of
their respective ERISA Affiliates has any liabilities, or any trust
created thereunder; or a trustee shall be appointed by a United States
District Court to administer any such Plan; or the Pension Benefit
Guaranty Corporation shall institute proceedings to terminate any such
Plan; or any of the Borrowers and their respective ERISA Affiliates
shall incur any liability to the Pension Benefit Guaranty Corporation
in connection with the termination of any such Plan; or any Plan or
trust created under any Plan of any Borrower and its ERISA Affiliates
shall engage in a non-exempt "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) which
would subject any such Plan, any trust created thereunder, any trustee
or administrator thereof, or any party dealing with any such Plan or
trust to any material tax or penalty on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code or any of
the Borrowers or any of their respective ERISA Affiliates shall enter
into or become obligated after the Agreement Date to contribute to a
Multiemployer Plan;
(k) There shall occur (x) any default (after the
expiration of any applicable cure period) under any indenture,
agreement, or instrument evidencing Indebtedness of nay of the
Borrowers or any of their respective Subsidiaries in an aggregate
principal amount exceeding $200,000 or (y) a cancellation of or default
(after the expiration of any applicable cure period) under the CBS
Contract; or
(l) All or any portion of any Security Document shall at
any time and for any reason be declared to be null and void, or a
proceeding shall be commenced by any of the Borrowers or any of their
respective Affiliates, or by any governmental authority having
jurisdiction over any of the Borrowers or any of their respective
Affiliates, seeking to establish the invalidity or unenforceability
thereof (exclusive of questions of interpretation of any provision
thereof), or any of the Borrowers or any of their respective
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Affiliates shall deny that it has any liability or obligation for the
payment of principal or interest purported to be created under any Loan
Document.
Section 8.2 Remedies. If an Event of Default shall have occurred
and shall be continuing, in addition to the rights and remedies set forth
elsewhere in this Agreement and the Loan Documents:
(a) With the exception of an Event of Default specified
in Section 8.1(g) or (h), the Administrative Agent, at the direction of
all of the Lenders, shall (i) terminate the Commitments and the Letter
of Credit Commitment, or (ii) declare the principal of and interest on
the Loans and the Notes and all other Obligations to be forthwith due
and payable without presentment, demand, protest, or notice of any
kind, all of which are hereby expressly waived, anything in this
Agreement or in the Notes to the contrary notwithstanding, or both.
(b) Upon the occurrence and continuance of an Event of
Default specified in Sections 8.1(g) or (h), such principal, interest,
and other Obligations shall thereupon and concurrently therewith become
due and payable, and the Commitments and the Letter of Credit
Commitment shall forthwith terminate, all without any action by the
Administrative Agent or the Lenders or the holders of the Notes and
without presentment, demand, protest, or other notice of any kind, all
of which are expressly waived, anything in this Agreement or in the
Notes to the contrary notwithstanding.
(c) The Administrative Agent, with the concurrence of all
of the Lenders, shall exercise all of the post-default rights granted
to it and to them under the Loan Documents or under Applicable Law. The
Administrative Agent, for the benefit of itself, the Issuing Banks and
the Lenders, shall have the right to the appointment of a receiver for
the Property of the Borrowers, and each of the Borrowers hereby
consents to such rights and such appointment and hereby waives any
objection such Borrower may have thereto or the right to have a bond or
other security posted by the Administrative Agent or the Lenders in
connection therewith.
(d) Application of Payments After Acceleration.
(i) Application of Payments After Acceleration
and Prior to Exercise of the Call Option. Subsequent to the
acceleration of the Obligations under this Section 8.2 and
prior to exercise of the Call Option, payments and prepayments
with respect to the Obligations made to the Administrative
Agent, the Issuing Banks or the Lenders, or otherwise received
by the Administrative Agent, any Issuing Bank or any Lender
(from realization on Collateral or otherwise) shall be
distributed in the following order of priority (subject, as
applicable, to Section 2.10 hereof): FIRST, to the costs and
expenses (including, without limitation, attorneys' fees and
expenses), if any, incurred by the Administrative Agent, any
Issuing Bank or any Lender in the collection of such amounts
under this Agreement or of the Loan Documents, including,
without limitation, any costs incurred in connection with the
sale or disposition of any Collateral; SECOND, to any fees
then due and payable to the Administrative Agent under this
Agreement
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or any other Loan Document; THIRD, to any fees then due and
payable to the Lenders and the Issuing Banks under this
Agreement or any other Loan Document; FOURTH, to the payment
of interest then due and payable on the Loans, on a pro rata
basis; FIFTH, to the payment of the principal of the Term
Loans then outstanding, on a pro rata basis; SIXTH, to the
payment of principal of the Revolving Loans then outstanding;
SEVENTH, to the payment of any obligation under any Interest
Hedge Agreement between any Borrower, on the one hand, and the
Administrative Agent (or an affiliate of the Administrative
Agent) or one or more Lenders (or an affiliate of a Lender),
on the other hand, on a pro rata basis; EIGHTH, to the extent
of any Letter of Credit Obligations then outstanding, to the
Letter of Credit Reserve Account; NINTH, to any other
Obligations not otherwise referred to in this Section 8.2(d);
TENTH, to damages incurred by the Administrative Agent, any
Issuing Bank or any Lender by reason of any breach hereof or
of any other Loan Document; and ELEVENTH, upon satisfaction in
full of all Obligations to the Borrowers or as otherwise
required by law.
(ii) Application of Payments After Acceleration
and After Exercise of the Call Option. Subsequent to the
acceleration of the Obligations under this Section 8.2 and
after the exercise of the Call Option and payment of the
Purchase Price (as defined in the Xxxxxxxx Guaranty), payments
and prepayments with respect to the Obligations made to the
Administrative Agent, the Issuing Banks or the Lenders, or
otherwise received by the Administrative Agent, any Issuing
Bank or any Lender shall be distributed in the following order
of priority (subject, as applicable, to Section 2.10 hereof):
FIRST, to the costs and expenses (including, without
limitation, attorneys' fees and expenses), if any, incurred by
the Administrative Agent, any Issuing Bank or any Lender in
the collection of such amounts under this Agreement or of the
Loan Documents, including, without limitation, any costs
incurred in connection with the sale or disposition of any
Collateral; SECOND, to any fees then due and payable to the
Administrative Agent under this Agreement or any other Loan
Document; THIRD, to any fees then due and payable to the
Lenders and the Issuing Banks under this Agreement or any
other Loan Document; FOURTH, to the payment of interest then
due and payable on the Revolving Loans; FIFTH, to the payment
of principal of the Revolving Loans then outstanding; SIXTH,
to the payment of any obligation under any Interest Hedge
Agreement between any Borrower, on the one hand, and the
Administrative Agent (or an affiliate of the Administrative
Agent) or one or more Lenders (or an affiliate of a Lender),
on the other hand, on a pro rata basis; SEVENTH, to the extent
of any Letter of Credit Obligations then outstanding, to the
Letter of Credit Reserve Account; EIGHTH, to any other
Obligations not otherwise referred to in this Section 8.2(d);
NINTH, to damages incurred by the Administrative Agent, any
Issuing Bank or any Lender by reason of any breach hereof or
of any other Loan Document; and TENTH, upon satisfaction in
full of all Obligations to the Borrowers or as otherwise
required by law.
(e) In regard to all Letters of Credit with respect to
which presentment for honor shall not have occurred at the time of any
acceleration of the Obligations pursuant
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to the provisions of this Section 8.2, the Borrowers shall promptly
upon demand by the Administrative Agent deposit in a Letter of Credit
Reserve Account opened by the Administrative Agent for the benefit of
the Issuing Banks an amount equal to one hundred and two percent (102%)
of the aggregate then undrawn and unexpired amount of such Letter of
Credit Obligations. Amounts held in such Letter of Credit Reserve
Account shall be applied by the Administrative Agent to the payment of
drafts drawn under such Letters of Credit, and the unused portion
thereof after such Letters of Credit shall have expired or been fully
drawn upon, if any, shall be applied to repay other obligations of the
Borrowers hereunder and under the Notes in the manner set forth in
Section 2.11 hereof. Pending the application of such deposit to the
payment of the Reimbursement Obligations, the Administrative Agent
shall, to the extent reasonably practicable, invest such deposit in an
interest bearing open account or similar available savings deposit
account and all interest accrued thereon shall be held with such
deposit as additional security for the Reimbursement Obligations. After
all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied, and all other
Obligations shall have been paid in full, the balance, if any, in such
Letter of Credit Reserve Account shall be returned to the Borrower.
Except as expressly provided hereinabove, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the
Borrower.
(f) The rights and remedies of the Administrative Agent,
the Issuing Banks and the Lenders hereunder shall be cumulative, and
not exclusive.
ARTICLE 9
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its Loans and in its Notes irrevocably to
appoint and authorize, the Administrative Agent to take such actions as its
agent on its behalf and to exercise such powers hereunder as are delegated by
the terms hereof, together with such powers as are reasonably incidental
thereto. Other than with respect to the Lenders' right to receive payments
received by the Administrative Agent on behalf of the Lenders in accordance with
this Agreement, neither the Administrative Agent nor any of its directors,
officers, employees, or agents shall be liable for any action taken or omitted
to be taken by it hereunder or in connection herewith, except for its own gross
negligence or willful misconduct as determined by a final non-appealable order
of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat
each Lender, or the Person designated in the last notice filed with the
Administrative Agent under this Section 9.2, as the holder of all of the
interests of such Lender in its Loans and in its Notes until written notice of
transfer, signed by such Lender (or the Person designated in the last notice
filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
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Section 9.3 Consultation with Counsel. The Administrative Agent
may consult with legal counsel selected by it and shall not be liable to any
Lender or any Issuing Bank for any action taken or suffered by it in good faith
in reliance on the advice of such counsel. Section 9.4 Documents. The
Administrative Agent shall not be under any duty to examine, inquire into, or
pass upon the validity, effectiveness, or genuineness of this Agreement, any
Note, or any instrument, document, or communication furnished pursuant hereto or
in connection herewith, and the Administrative Agent shall be entitled to assume
that they are valid, effective, and genuine, have been signed or sent by the
proper parties, and are what they purport to be.
Section 9.4 Documents. The Administrative Agent shall not be
under any duty to examine, inquire into, or pass upon the validity,
effectiveness, or genuineness of this Agreement, any Note, or any instrument,
document, or communication furnished pursuant hereto or in connection herewith,
and the Administrative Agent shall be entitled to assume that they are valid,
effective, and genuine, have been signed or sent by the proper parties, and are
what they purport.
Section 9.5 Administrative Agent and Affiliates. With respect to
the Commitments and Loans, the Administrative Agent shall have the same rights
and powers hereunder as any other Lender, and the Administrative Agent and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrowers or any Affiliates of, or Persons doing
business with, any Borrower, as if it were not the Administrative Agent or
affiliated with the Administrative Agent and without any obligation to account
therefor. The Lenders and the Issuing Banks acknowledge that the Administrative
Agent and its affiliates have other lending and investment relationships with
the Borrowers and their Affiliates and in the future may enter into additional
such relationships.
Section 9.6 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement are only
those expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the
Borrowers, of such fact, or has been notified by a Lender that such Lender
considers that a Default or an Event of Default has occurred and is continuing,
and such Lender shall specify in detail the nature thereof in writing. The
Administrative Agent shall provide each Lender with copies of such documents
received from the Borrowers.
Section 9.7 Action by Administrative Agent.
(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or
refraining from taking any action or actions which it may be able to
take under or in respect of, this Agreement, unless the Administrative
Agent shall have been instructed by all of the Lenders to exercise or
refrain from exercising such rights or to take or refrain from taking
such action, provided that the Administrative Agent shall not exercise
any rights under Section 8.2(a) of this Agreement without the approval
of all of the Lenders. The Administrative Agent shall incur no
liability under or in respect of this Agreement with respect to
anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or
desirable in the circumstances.
(b) The Administrative Agent shall not be liable to the
Lenders or to any Lender in acting or refraining from acting under this
Agreement in accordance with the instructions of all of the Lenders,
and any action taken or failure to act pursuant to such
84
instructions shall be binding on all Lenders, unless this Agreement
specifically requires the consent of all Lenders to such action or
inaction.
(c) The Administrative Agent, without the concurrence of
all of the Lenders and except as provided for herein, shall not (i)
consent to the receipt of any payment in respect of the Subordinated
Debt by the Parent otherwise prohibited hereunder, or (ii) consent to
the amendment of the Subordinated Note, or any other agreement,
instrument or document relating thereto, or the granting of collateral
to secure the Subordinated Debt.
Section 9.8 Notice of Default or Event of Default. In the event
that the Administrative Agent or any Lender shall acquire actual knowledge, or
shall have been notified in writing, of any Default or Event of Default, the
Administrative Agent or such Lender shall promptly notify the Lenders and the
Administrative Agent, and the Administrative Agent shall take such action and
assert such rights under this Agreement as all of the Lenders shall request in
writing, and the Administrative Agent shall not be subject to any liability by
reason of its acting pursuant to any such request, unless such action requires
the consent of all Lenders. If the Lenders shall fail to request the
Administrative Agent to take action or to assert rights under this Agreement in
respect of any Default or Event of Default within ten (10) days after their
receipt of the notice of any Default or Event of Default from the Administrative
Agent, or shall request inconsistent action with respect to such Default or
Event of Default, the Administrative Agent may, but shall not be required to,
take such action and assert such rights (other than rights under Article 8
hereof) as it deems in its discretion to be advisable for the protection of the
Lenders, except that, if all of the Lenders have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 9.9 Responsibility Disclaimed. The Administrative Agent
shall not be under any liability or responsibility whatsoever as Administrative
Agent:
(a) To any Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by,
any Lender or Lenders of any of its or their obligations under this
Agreement;
(b) To any Lender or Lenders, as a consequence of any
failure or delay in performance by, or any breach by, any Borrower or
any other obligor of any of its obligations under this Agreement or the
Notes or any other Loan Document; or
(c) To any Lender or Lenders for any statements,
representations, or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to
this Agreement, any other Loan Document, or any other document
contemplated by this Agreement, or for the validity, effectiveness,
enforceability, or sufficiency of this Agreement, the Notes, any other
Loan Document, or any other document contemplated by this Agreement.
Section 9.10 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers) pro rata in
accordance with their Aggregate Commitment Ratios from and against any and all
liabilities, obligations, losses,
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damages, penalties, actions, judgments, suits, investigations, costs, expenses
(including fees and expenses of experts, agents, consultants, and counsel), or
disbursements of any kind or nature (whether or not the Administrative Agent is
a party to any such action, suit or investigation) whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement, any other Loan Document, or any
other document contemplated by this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, except that no Lender shall be
liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent as determined by a final non-appealable
order of a court of competent jurisdiction. The provisions of this Section 9.10
shall survive the termination of this Agreement.
Section 9.11 Credit Decision. Each Lender represents and
warrants to each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make its Advances it has independently taken whatever steps it
considers necessary to evaluate the financial condition and affairs of
the Borrowers and that it has made an independent credit judgment, and
that it has not relied upon information provided by the Administrative
Agent; and
(b) So long as any portion of the Loans remains
outstanding, it will continue to make its own independent evaluation of
the financial condition and affairs of the Borrowers.
Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrowers. Upon any such resignation, all of the
Lenders shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by all of the
Lenders, and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be any Lender or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties, and obligations of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 9 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
Section 9.13 Administrative Agent May File Proofs of Claim. The
Administrative Agent may file such proofs of claim and other papers or documents
as may be necessary or
86
advisable in order to have the claims of the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent, its agents, financial advisors and counsel), the
Lenders and the Issuing Banks allowed in any judicial proceedings relative to
any Borrower or any Subsidiary of a Borrower, or any of their respective
creditors or property, and shall be entitled and empowered to collect, receive
and distribute any monies, securities or other property payable or deliverable
on any such claims and any custodian in any such judicial proceedings is hereby
authorized by each Lender and each Issuing Bank to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the Issuing
Banks, to pay to the Administrative Agent any amount due to the Administrative
Agent for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent, its agents, financial advisors and counsel, and any
other amounts due the Administrative Agent under Section 10.2 hereof. Nothing
contained in the Loan Agreement or the Loan Documents shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or adopt
on behalf of any Lender or any Issuing Bank any plan of reorganization,
arrangement, adjustment or composition affecting the Notes, the Letters of
Credit or the rights of any holder thereof, or to authorize the Administrative
Agent to vote in respect of the claim of any Lender or any Issuing Bank in any
such proceeding.
Section 9.14 Collateral. The Administrative Agent is hereby
authorized to hold all Collateral pledged pursuant to any Loan Document and to
act on behalf of the Lenders and the Issuing Banks, in its own capacity and
through other agents appointed by it, under the Security Documents; provided,
that the Administrative Agent shall not agree to the release of any Collateral
except in accordance with the terms hereof.
Section 9.15 Release of Collateral.
(a) Each Lender and each Issuing Bank hereby directs, in
accordance with the terms of this Agreement, the Administrative Agent
to release or to subordinate any Lien held by the Administrative Agent
for the benefit of the Lenders and the Issuing Banks:
(i) against all of the Collateral, upon final
and indefeasible payment in full of the Obligations and
termination of this Agreement; or
(ii) against any part of the Collateral sold or
disposed of by any Borrower if such sale or disposition is
permitted by Section 7.7 hereof or is otherwise consented to
by all of the Lenders for such release as set forth in Section
10.12 hereof, as certified to the Administrative Agent by the
Borrowers in a certificate of an Authorized Signatory; or
(iii) after exercise of the Call Option and
payment of the Purchase Price (as defined in the Xxxxxxxx
Guaranty), against the Call Option Collateral (as defined in
the Xxxxxxxx Guaranty) in accordance with the terms and
conditions of the Xxxxxxxx Guaranty;
(b) Each Lender and each Issuing Bank hereby directs the
Administrative Agent to execute and deliver or file such termination
and partial release statements and
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do such other things as are necessary to release Liens to be released
pursuant to this Section 9.15 promptly upon the effectiveness of any
such release. Upon request by the Administrative Agent at any time, the
Lenders and the Issuing Banks will confirm in writing the
Administrative Agent's authority to release particular types or items
of Collateral pursuant to this Section 9.15.
Section 9.16 Security Documents. The Administrative Agent is
hereby authorized to enter into each of the Security Documents on behalf itself
and on behalf of the Issuing Banks and the Lenders.
Section 9.17 Sole Lead Arranger and Book Manager. Wachovia
Securities, Inc., in its capacity as the Sole Lead Arranger and Book Manager
under this Agreement, shall be subject to no duties or obligations under this
Agreement or under any other Loan Document in its capacity as Sole Lead Arranger
and Book Manager.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Notices.
(a) All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given
five (5) days after deposit in the mail, designated as certified mail,
return receipt requested, post-prepaid, or one (1) day after being
entrusted to a reputable commercial overnight delivery service, or when
delivered by telecopy addressed to the party to which such notice is
directed at its address determined as provided in this Section 10.1.
All notices and other communications under this Agreement shall be
given to the parties hereto at the following addresses:
(i) If to any Borrower the Parent or Xxxxxxxx,
to it at:
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Xx.,
President and CEO
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxx
Telecopy No.: (000) 000-0000
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and
0000 Xxxxxx Xxxxxx Xxxx.
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxxx,
Vice President-Finance
Telecopy No.: (000) 000-0000
and
J. Xxxx Xxxxxxxx
c/o Delta Life Insurance Company
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
(ii) If to the Administrative Agent, to it at:
Wachovia Bank, National Association
One Wachovia Center,
000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx, Managing Director
Telecopy No.: (000) 000-0000
and
Wachovia Securities, Inc.
Syndication Agency Services
000 Xxxxx Xxxxxxx Xxxxxx,
0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 28288-0288
Attn: Xxxxxxx Sio
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx
One Wachovia Center
Suite 3300
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) If to the Lenders or the Issuing Banks, to
them at the addresses set forth on Schedule 1 hereto.
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Copies shall be provided to persons other than parties hereto only in
the case of notices under Article 8 hereof.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 10.1 by giving ten (10)
days' written notice of such change to the other parties.
Section 10.2 Expenses. The Borrowers, jointly and severally,
agree to pay promptly:
(a) All reasonable out-of-pocket expenses of the Lenders
in connection with the preparation, negotiation, execution, and
delivery of this Agreement and the other Loan Documents, the
transactions contemplated hereunder and thereunder, and the making of
the initial Advance hereunder, including, but not limited to, the fees
and disbursements of counsel for the Lenders;
(b) All reasonable out-of-pocket expenses of the Lenders
in connection with the administration of the transactions contemplated
in this Agreement or the other Loan Documents, and the preparation,
negotiation, execution, and delivery of any waiver, amendment, or
consent by the Lenders relating to this Agreement or the other Loan
Documents, including, but not limited to, all reasonable out-of-pocket
expenses of the Lenders in connection with field audits and the fees
and disbursements of counsel for the Lenders;
(c) All reasonable out-of-pocket costs and expenses of
the Administrative Agent, the Issuing Banks and any Lender in
connection with any restructuring, refinancing, or "work out" of the
transactions contemplated by this Agreement, and of obtaining
performance under this Agreement or the other Loan Documents, and all
out-of-pocket costs and expenses of collection if default is made in
the payment of the Notes, which in each case shall include fees and
out-of-pocket expenses of counsel for the Administrative Agent and any
Lender, and the fees and out-of-pocket expenses of any experts, agents,
or consultants of the Administrative Agent; and
(d) All taxes (other than taxes imposed on the income of
the Administrative Agent and the Lenders), assessments, general or
special, and other charges levied on, or assessed, placed or made
against any of the Collateral, the Notes or the Obligations.
Section 10.3 Waivers. The rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Issuing Banks, or the Lenders in exercising any right shall operate as a waiver
of such right. The Administrative Agent and the Lenders expressly reserve the
right to require strict compliance with the terms of this Agreement in
connection with any funding of a request for an Advance. In the event the
Lenders decide to fund a request for an Advance at a time when the Borrowers are
not in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further requests for Advances or preclude the Lenders from exercising any
rights available to the Lenders under the Loan Documents or at law or equity.
Any waiver or indulgence granted
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by the Lenders shall not constitute a modification of this Agreement, except to
the extent expressly provided in such waiver or indulgence, or constitute a
course of dealing by the Lenders at variance with the terms of the Agreement
such as to require further notice by the Lenders of the Lenders' intent to
require strict adherence to the terms of the Agreement in the future. Any such
actions shall not in any way affect the ability of the Lenders, in their
discretion, to exercise any rights available to them under this Agreement or
under any other agreement, whether or not the Lenders are party, relating to any
Borrower. Each of the Borrowers hereby waives any right that it may have to
require the Administrative Agent, and agrees that the Administrative Agent shall
not have any obligation, to marshal the property, instruments, documents,
agreements or guaranties of any other Borrower before enforcing its rights
against the Collateral or its rights under this Agreement or any other Loan
Document as against such Borrower.
Section 10.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
except to the extent limited by Applicable Law, upon the occurrence of an Event
of Default and during the continuation thereof, the Lenders and any subsequent
holder or holders of the Notes are hereby authorized by each Borrower at any
time or from time to time, without notice to any Borrower or to any other
Person, any such notice being hereby expressly waived, to set-off and to
appropriate and apply any and all deposits (general or special, time or demand,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured, but not including any
amounts held by the Administrative Agent or any of its Affiliates in any escrow
account) and any other Indebtedness at any time held or owing by the Lenders or
such holder to or for the credit or the account of the Borrowers, against and on
account of the obligations and liabilities of the Borrowers, to the Lenders or
such holder under this Agreement, the Notes, and any other Loan Document,
including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement, the Notes, or any other Loan Document,
irrespective of whether or not (a) the Lenders or the holder of the Notes shall
have made any demand hereunder or (b) the Lenders shall have declared the
principal of and interest on the Loans and Notes and other amounts due hereunder
to be due and payable as permitted by Section 8.2 and although said obligations
and liabilities, or any of them, shall be contingent or unmatured. Any sums
obtained by any Lender or by any subsequent holder of the Notes shall be subject
to the application of payments provisions of Article 2 hereof. Upon direction by
the Administrative Agent, with the consent of all of the Lenders, each Lender
holding deposits of any Borrower shall exercise its set-off rights as so
directed.
Section 10.5 Assignment.
(a) None of the Borrowers may assign or transfer any of
its rights or obligations hereunder, under the Notes or under any other
Loan Document without the prior written consent of each Lender.
(b) Each of the Lenders may at any time enter into
assignment agreements or participations with one or more other banks or
other Persons pursuant to which each Lender may assign or participate
its interest under this Agreement and the other Loan Documents,
including, its interest in any particular Advance or portion thereof,
provided, that (1) all assignments (other than assignments described in
clause (2) herein and in Section 10.12(b) hereof) shall be in minimum
principal amounts of $5,000,000 or in an
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amount equal to the entire applicable Commitment or Letter of Credit
Commitment of such Lender, (2) each Lender may sell assignments or
participations of up to one hundred percent (100%) of its interest
hereunder to (A) one or more Affiliates of such Lender, or (B) any
Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board and any Operating Circular issued by such Federal Reserve
Bank (no assignment under this clause (B) shall relieve such Lender
from its obligations hereunder), and (3) all assignments (other than
assignments described in clause (2) herein and in Section 10.12(b)
hereof) and participations hereunder shall be subject to the following
additional terms and conditions:
(i) No assignment (except assignments permitted
in Section 10.5(b)(2) hereof) shall be sold without the prior
consent of the Administrative Agent, which consent shall not
be unreasonably withheld or delayed;
(ii) Any Person purchasing a participation or an
assignment of the Loans from any Lender shall be required to
represent and warrant that its purchase shall not constitute a
"prohibited transaction" (as defined in Section 4.1(n)
hereof);
(iii) The Borrowers, the Lenders, and the
Administrative Agent agree that assignments permitted
hereunder (including the assignment of any Advance or portion
thereof) may be made with all voting rights, and, except with
respect to the Call Option, shall be made pursuant to an
Assignment and Assumption Agreement. An administrative fee of
$3,500 shall be payable to the Administrative Agent by the
assigning Lender or the assignee Lender at the time of any
assignment hereunder (other than in connection with the Call
Option); provided, however, no fee shall be due with respect
to any assignment by a Lender to an Affiliate of such Lender;
(iv) No participation agreement shall confer any
rights under this Agreement or any other Loan Document to any
purchaser thereof, or relieve any issuing Lender from any of
its obligations under this Agreement, and all actions
hereunder shall be conducted as if no such participation had
been granted; provided, however, that any participation
agreement may confer on the participant the right to approve
or disapprove decreases in the rate of interest or fees to the
Lenders, increases in the advance rates set forth in the
definition of "Borrowing Base" herein, increases in the
principal amount of such participant's pro rata share of the
Revolving Loan Commitment and extensions of any Maturity Date
for, or the date for any scheduled payment of principal,
interest or fees on, the Loans;
(v) Each Lender agrees to provide the
Administrative Agent and the Borrowers with prompt written
notice of any issuance of participation or assignments of its
interests hereunder;
(vi) No assignment, participation or other
transfer of any rights hereunder or under the Notes shall be
effected that would result in any interest
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requiring registration under the Securities Act of 1933, as
amended, or qualification under any state securities law;
(vii) No such assignment may be made to any bank
or other financial institution (x) with respect to which a
receiver or conservator (including, without limitation, the
Federal Deposit Insurance Corporation, the Resolution Trust
Company or the Office of Thrift Supervision) has been
appointed or (y) that is not "adequately capitalized" (as such
term is defined in Section 131(b)(1)(B) of the Federal Deposit
Insurance Corporation Improvement Act as in effect on the
Agreement Date);
(viii) Except with respect to the Call Option, each
assignment or participation hereunder shall be made by the
assigning Lender pro rata with respect to such assigning
Lender's Revolving Loan Commitment and Tranche A Loan and
Tranche B Loan; and
(ix) If applicable, each Lender shall, and shall
cause each of its assignees to provide to the Administrative
Agent on or prior to the Agreement Date or effective date of
any assignment, as the case may be, an appropriate Internal
Revenue Service form as required by Applicable Law supporting
such Lender's position that no withholding by any Borrower or
the Administrative Agent for U.S. income tax payable by such
Lender in respect of amounts received by it hereunder is
required. For purposes of this Agreement, an appropriate
Internal Revenue Service form shall mean Form 1001 (Ownership
Exemption or Reduced Rate Certificate of the U.S. Department
of Treasury), or Form 4224 (Exemption from Withholding of Tax
on Income Effectively Connected with the Conduct of a Trade or
Business in the United States), or any successor or related
forms adopted by the relevant United States taxing
authorities.
(c) Except as specifically set forth in Section 10.5(b)
hereof, nothing in this Agreement or the Notes, expressed or implied,
is intended to or shall confer on any Person other than the respective
parties hereto and thereto and their successors and assignees permitted
hereunder and thereunder any benefit or any legal or equitable right,
remedy or other claim under this Agreement or the Notes.
(d) Anything in this Agreement to the contrary
notwithstanding, in the case of any participation, all amounts payable
by the Borrowers under the Loan Documents shall be calculated and made
in the manner and to the parties hereto as if no such participation had
been sold.
Section 10.6 Counterparts; Facsimile Transmission. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all such separate counterparts shall together constitute but
one and the same instrument. Delivery of an executed counterpart of this
Agreement or any other Loan Document by facsimile shall be equally as effective
as delivery of an original executed counterpart of this Agreement or such Loan
Document, as applicable. Any party delivering an executed counterpart of this
Agreement or any Loan Document by facsimile also shall deliver an original
executed counterpart of this
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Agreement or such Loan Document, as applicable, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Agreement or any such Loan Document.
Section 10.7 Governing Law. This Agreement and the Loan Documents
shall be construed in accordance with and governed by the laws of the State of
Georgia, without regard to the conflict of laws principles thereof, except to
the extent otherwise provided in the Loan Documents.
Section 10.8 Severability. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 10.9 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 10.10 Source of Funds. Notwithstanding the use by the
Lenders of the Base Rate and the Eurodollar Rate as reference rates for the
determination of interest on the Loans, the Lenders shall be under no obligation
to obtain funds from any particular source in order to charge interest to the
Borrowers at interest rates tied to such reference rates.
Section 10.11 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein embody the entire Agreement and understanding among the
parties hereto and thereto and supersede all prior agreements, understandings,
and conversations relating to the subject matter hereof and thereof. Each
Borrower represents and warrants to the Administrative Agent and each of the
Lenders that it has read the provisions of this Section 10.11 and discussed the
provisions of this Section 10.11 and the rest of the Loan Agreement with counsel
for the Borrowers, and each Borrower acknowledges and agrees that the
Administrative Agent and each of the Lenders are expressly relying upon such
representations and warranties of such Borrower (as well as the other
representations and warranties of each of the Borrowers set forth in Section 4.1
hereof) in entering into this Agreement.
Section 10.12 Amendments and Waivers.
(a) Neither this Agreement nor any other Loan Document or
any term hereof may be amended orally, nor may any provision hereof be
waived orally but only by an instrument in writing signed by all of the
Lenders and, in the case of an amendment, also by the Borrowers.
(b) Each Lender grants to the Administrative Agent the
right to purchase all (but not less than all) of such Lender's
Commitments, Letter of Credit Commitment, and the Loans and Letter of
Credit Obligations owing to it and the Notes held by it and all of its
rights and obligations hereunder and under the other Loan Documents at
a price equal to the aggregate amount of outstanding Loans and Letter
of Credit Obligations owed to such Lender (together with all accrued
and unpaid interest and fees owed to such Lender), which right may be
exercised by the Administrative Agent if such Lender
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refuses to execute any amendment, waiver or consent which requires the
written consent of all of the Lenders and to which all of the Lenders,
the Administrative Agent and the Borrowers have agreed. Each Lender
agrees that if the Administrative Agent exercises its option hereunder,
it shall promptly execute and deliver an Assignment and Assumption
Agreement and other agreements and documentation necessary to
effectuate such assignment. The Administrative Agent may assign its
purchase rights hereunder to any assignee if such assignment complies
with the requirements of Section 10.5(b)(i), (ii), (vi), (vii) and
(ix).
Section 10.13 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent, each Issuing Bank and each Lender to enter into or
maintain business relationships with any of the Borrowers, or any of their
respective Affiliates, beyond the relationships specifically contemplated by
this Agreement and the other Loan Documents.
Section 10.14 Pronouns. The pronouns used herein shall include,
when appropriate, either gender and both singular and plural, and the
grammatical construction of sentences shall conform thereto.
Section 10.15 Disclosure. Each of the Borrowers agrees that the
Administrative Agent shall have the right to issue press releases regarding the
making of the Loans to the Borrowers pursuant to the terms of this Agreement.
Section 10.16 Replacement of Lender. In the event that a
Replacement Event occurs and is continuing with respect to any Lender, the
Borrowers may designate another financial institution (such financial
institution being herein called a "Replacement Lender") acceptable to the
Administrative Agent, and which is not a Borrower or an Affiliate of a Borrower,
to assume such Lender's Commitments hereunder, to purchase the Loans and
participations of such Lender and such Lender's rights hereunder, without
recourse to or representation or warranty by, or expense to, such Lender for a
purchase price equal to the outstanding principal amount of the Loans payable to
such Lender plus any accrued but unpaid interest on such Loans and accrued but
unpaid commitment fees owing to such Lender, and upon such assumption, purchase
and substitution, and subject to the execution and delivery to the
Administrative Agent by the Replacement Lender of documentation satisfactory to
the Administrative Agent (pursuant to which such Replacement Lender shall assume
the obligations of such original Lender under this Agreement), the Replacement
Lender shall succeed to the rights and obligations of such Lender hereunder and
such Lender shall no longer be a party hereto or have any rights hereunder
provided that the obligations of the Borrowers to indemnify such Lender with
respect to any event occurring or obligations arising before such replacement
shall survive such replacement.
"Replacement Event" means, with respect to any Lender, (i) the
commencement of or the taking of possession by, a receiver, custodian,
conservator, trustee or liquidator of such Lender, (ii) any Issuing Bank or any
Lender requesting compensation under Section 2.16(g), 11.3 or 11.5 as the case
may be, (iii) the declaration by the appropriate regulatory authority that such
Lender is insolvent, or (iv) the failure of such Lender to consent to a
requested waiver or amendment.
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Section 10.17 Confidentiality. The Borrowers agree that the
Administrative Agent, the Issuing Banks and each Lender may use the Borrowers'
names in advertising and promotional material and in conjunction therewith
disclose the general terms of this Agreement.
Section 10.18 Amendments to Loan Documents. To the extent that any
of the Loan Documents are not being amended and restated in connection herewith,
each of such Loan Documents is hereby deemed modified and amended to the extent
necessary to reflect the amendments contained herein. Each reference to the
"Credit Agreement" contained in such Loan Documents shall be deemed to refer to
this Agreement, and each reference to the other "Loan Documents" contained in
such Loan Documents shall be deemed to include such Loan Documents as they may
be amended and restated in connection herewith.
ARTICLE 11
YIELD PROTECTION
Section 11.1 Eurodollar Rate Basis Determination. Notwithstanding
anything contained herein which may be construed to the contrary, if with
respect to any proposed Eurodollar Advance for any Eurodollar Advance Period,
the Administrative Agent determines that deposits in dollars (in the applicable
amount) are not being offered to the Administrative Agent in the relevant market
for such Eurodollar Advance Period, the Administrative Agent shall forthwith
give notice thereof to the Borrowers and the Lenders, whereupon until the
Administrative Agent notifies the Borrowers that the circumstances giving rise
to such situation no longer exist, the obligations of the Lenders to make
Eurodollar Advances shall be suspended.
Section 11.2 Illegality. If any applicable law, rule, or
regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender with any request or directive (whether or
not having the force of law) of any such authority, central bank, or comparable
agency, shall make it unlawful or impossible for any Lender to make, maintain,
or fund its Eurodollar Advances, such Lender shall so notify the Administrative
Agent, and the Administrative Agent shall forthwith give notice thereof to the
other Lenders and the Borrowers. Before giving any notice to the Administrative
Agent pursuant to this Section 11.2, such Lender shall designate a different
lending office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. Upon receipt of such notice, notwithstanding anything contained in
Article 2 hereof, the Borrowers shall repay in full the then outstanding
principal amount of each affected Eurodollar Advance of such Lender, together
with accrued interest thereon, either (a) on the last day of the then current
Eurodollar Advance Period applicable to such Eurodollar Advance if such Lender
may lawfully continue to maintain and fund such Eurodollar Advance to such day
or (b) immediately if such Lender may not lawfully continue to fund and maintain
such Eurodollar Advance to such day. Concurrently with repaying each affected
Eurodollar Advance of such Lender, notwithstanding anything contained in Article
2 hereof, the Borrowers shall borrow a Base Rate Advance from such Lender, and
such Lender shall make such Advance in an amount such that the outstanding
principal amount of the Note held by such Lender shall equal the outstanding
principal amount of such Note immediately prior to such repayment.
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Section 11.3 Increased Costs.
(a) If after the Agreement Date any applicable law, rule,
or regulation, or any change therein, or any interpretation or change
in interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the
interpretation or administration thereof or compliance by any Lender
with any request or directive (whether or not such governmental
authority, central bank, or comparable agency has the authority to make
such request or directive):
(i) Shall subject any Lender to any tax, duty,
or other charge with respect to its obligation to make
Eurodollar Advances, or its Eurodollar Advances, or shall
change the basis of taxation of payments to any Lender of the
principal of or interest on its Eurodollar Advances or in
respect of any other amounts due under this Agreement in
respect of its Eurodollar Advances or its obligation to make
Eurodollar Advances (except for changes in the rate of tax on
the overall net income of such Lender imposed by the
jurisdiction in which such Lender's principal executive office
is located); or
(ii) Shall impose, modify, or deem applicable any
reserve (including, without limitation, any imposed by the
Board, but excluding any included in an applicable Eurodollar
Reserve Percentage), special deposit, capital adequacy,
assessment, or other requirement or condition against assets
of, deposits with or for the account of, or commitments or
credit extended by any Lender, or shall impose on any Lender
or the eurodollar interbank borrowing market any other
condition affecting its obligation to make such Eurodollar
Advances or its Eurodollar Advances; and the result of any of
the foregoing is to increase the cost to such Lender of making
or maintaining any such Eurodollar Advances, or to reduce the
amount of any sum received or receivable by the Lender under
this Agreement or under its Notes with respect thereto, and
such increase is not given effect in the determination of the
Eurodollar Rate then, on the earlier of demand by such Lender
or the Maturity Date, the Borrowers, jointly and severally,
agree to pay to such Lender such additional amount or amounts
as will compensate such Lender for such increased costs. Each
Lender will promptly notify the Borrowers and the
Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section 11.3 and will
designate a different lending office if such designation will
avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation
under this Section 11.3 and setting forth the additional amount or
amounts to be paid to it hereunder and calculations therefor shall be
conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods. If any Lender demands compensation under this Section 11.3,
the Borrowers may at any time, upon at least five (5) Business Days'
prior notice to such Lender, prepay in full the then outstanding
affected Eurodollar Advances of such Lender, together with accrued
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interest thereon to the date of prepayment, along with any
reimbursement required under Section 2.9 hereof. Concurrently with
prepaying such Eurodollar Advances the Borrowers shall borrow a Base
Rate Advance from such Lender, and such Lender shall make such Advance
in an amount such that the outstanding principal amount of the Notes
held by such Lender shall equal the outstanding principal amount of
such Notes immediately prior to such prepayment.
Section 11.4 Effect On Other Advances. If notice has been given
pursuant to Section 11.1 or 11.2 suspending the obligation of any Lender to make
Eurodollar Advance, or requiring Eurodollar Advances of any Lender to be repaid
or prepaid, then, unless and until such Lender notifies the Borrowers that the
circumstances giving rise to such repayment no longer apply, all Advances which
would otherwise be made by such Lender as Eurodollar Advances shall, at the
option of the Borrowers, be made instead as Base Rate Advances.
Section 11.5 Capital Adequacy. If after the date hereof, any
Lender or Issuing Bank (or any affiliate thereof) shall have reasonably
determined that the adoption of any applicable law, governmental rule,
regulation or order regarding the capital adequacy of banks or bank holding
companies, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Lender or Issuing Bank (or any affiliate thereof) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's or Issuing
Bank's (or any affiliate thereof) capital as a consequence of such Lender's or
Issuing Bank's Commitments or obligations hereunder to a level below that which
it could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or Issuing Bank's (or any affiliate thereof)
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender's or Issuing Bank's (or any
affiliate thereof) capital was fully utilized prior to such adoption, change or
compliance), then, upon demand by such Lender or Issuing Bank, the Borrowers
shall immediately pay to such Lender or Issuing Bank such additional amounts as
shall be sufficient to compensate such Lender or Issuing Bank for any such
reduction actually suffered; provided, however, that there shall be no
duplication of amounts paid to a Lender or Issuing Bank pursuant to this
sentence and Section 11.3 hereof. A certificate of such Lender or Issuing Bank
setting forth the amount to be paid to such Lender or Issuing Bank by the
Borrowers as a result of any event referred to in this paragraph shall, absent
manifest error, be conclusive.
ARTICLE 12
JURISDICTION, VENUE AND WAIVER OF JURY TRIAL
Section 12.1 Jurisdiction and Service of Process. FOR PURPOSES OF
ANY LEGAL ACTION OR PROCEEDING BROUGHT BY THE ADMINISTRATIVE AGENT, THE ISSUING
BANKS OR THE LENDERS WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
THE PARENT AND EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL
JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN THE STATE OF GEORGIA AND
HEREBY IRREVOCABLY DESIGNATES AND APPOINTS, AS ITS AUTHORIZED AGENT FOR SERVICE
OF
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PROCESS IN THE STATE OF GEORGIA, BULL RUN, WHOSE ADDRESS IS SET FORTH IN
SECTION 10.1 HEREOF, OR SUCH OTHER PERSON AS THE PARENT AND THE BORROWERS SHALL
DESIGNATE HEREAFTER BY WRITTEN NOTICE GIVEN TO THE ADMINISTRATIVE AGENT. THE
CONSENT TO JURISDICTION HEREIN SHALL NOT BE EXCLUSIVE. THE ADMINISTRATIVE AGENT,
THE ISSUING BANKS AND THE LENDERS SHALL FOR ALL PURPOSES AUTOMATICALLY, AND
WITHOUT ANY ACT ON THEIR PART, BE ENTITLED TO TREAT SUCH DESIGNEE OF THE PARENT
AND THE BORROWERS AS THE AUTHORIZED AGENT TO RECEIVE FOR AND ON BEHALF OF THE
PARENT AND EACH BORROWER SERVICE OF WRITS, OR SUMMONS OR OTHER LEGAL PROCESS IN
THE STATE OF GEORGIA, WHICH SERVICE SHALL BE DEEMED EFFECTIVE PERSONAL SERVICE
ON THE PARENT OR SUCH BORROWER SERVED WHEN DELIVERED, WHETHER OR NOT SUCH AGENT
GIVES NOTICE TO THE PARENT OR SUCH BORROWER; AND DELIVERY OF SUCH SERVICE TO ITS
AUTHORIZED AGENT SHALL BE DEEMED TO BE MADE WHEN PERSONALLY DELIVERED OR THREE
(3) BUSINESS DAYS AFTER MAILING BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
SUCH AUTHORIZED AGENT. THE PARENT AND EACH BORROWER FURTHER IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL TO THE PARENT OR SUCH BORROWER AT THE
ADDRESS SET FORTH ABOVE, SUCH SERVICE TO BECOME EFFECTIVE THREE (3) BUSINESS
DAYS AFTER SUCH MAILING. IN THE EVENT THAT, FOR ANY REASON, SUCH AGENT OR HIS OR
HER SUCCESSORS SHALL NO LONGER SERVE AS AGENT OF THE PARENT AND THE BORROWERS TO
RECEIVE SERVICE OF PROCESS IN THE STATE OF GEORGIA, THE PARENT AND THE BORROWERS
SHALL SERVE AND ADVISE THE ADMINISTRATIVE AGENT THEREOF SO THAT AT ALL TIMES THE
PARENT AND EACH BORROWER WILL MAINTAIN AN AGENT TO RECEIVE SERVICE OF PROCESS IN
THE STATE OF GEORGIA ON BEHALF OF EACH BORROWER WITH RESPECT TO THIS AGREEMENT
AND ALL OTHER LOAN DOCUMENTS. IN THE EVENT THAT, FOR ANY REASON, SERVICE OF
LEGAL PROCESS CANNOT BE MADE IN THE MANNER DESCRIBED ABOVE, SUCH SERVICE MAY BE
MADE IN SUCH MANNER AS PERMITTED BY LAW.
Section 12.2 Consent to Venue. THE PARENT AND EACH BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION IT WOULD MAKE NOW OR HEREAFTER FOR THE LAYING
OF VENUE OF ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA SITTING IN ATLANTA, GEORGIA, AND HEREBY IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH SUIT, ACTION, OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
Section 12.3 Waiver of Jury Trial. THE PARENT AND EACH BORROWER
AND EACH OF THE ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS TO THE
EXTENT PERMITTED BY APPLICABLE LAW WAIVE, AND OTHERWISE AGREE NOT TO REQUEST, A
TRIAL BY JURY IN ANY COURT AND IN ANY ACTION, PROCEEDING OR COUNTERCLAIM OF ANY
TYPE IN WHICH THE PARENT OR ANY OF THE BORROWERS, ANY OF THE LENDERS, THE
ADMINISTRATIVE AGENT, ANY
99
OF THE ISSUING BANKS OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A
PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG
THE PARTIES LISTED IN THIS ARTICLE 12.
ARTICLE 13
RELEASES
Section 13.1 Release of Bank of America, N.A., as Administrative
Agent under the Prior Credit Agreement.
(a) Bank of America, N.A., as "Administrative Agent"
under the Prior Credit Agreement (the "Original Administrative Agent")
hereby gives notice of its resignation as Administrative Agent under
the Prior Credit Agreement pursuant to Section 9.12 thereof, and the
Lenders hereby appoint Wachovia to serve as Administrative Agent under
the Agreement. The resignation of the Original Administrative Agent and
the appointment of the Administrative Agent shall be effective as of
the Agreement Date upon the Original Administrative Agent's receipt of
a duly executed copy of this Agreement identifying Wachovia as the
Administrative Agent.
(b) In order to induce the Original Administrative Agent
to deliver its resignation and to agree to the appointment of Wachovia
as Administrative Agent, each of the Borrowers and the Parent (a)
represents and warrants that there are no claims, causes of action,
suits, debts, obligations, liabilities, demands of any kind, character
or nature whatsoever, fixed or contingent, which the Borrowers and the
Parent, or any of them, may have, or claim to have, against the
Original Administrative Agent with respect to the transactions
contemplated by the Prior Credit Agreement and the other "Loan
Documents" (as defined in the Prior Credit Agreement), and each of the
Borrowers and the Parent hereby releases, acquits and forever
discharges the Original Administrative Agent and its agents, employees,
officers, directors, servants, representatives, attorneys, affiliates,
successors and assigns (collectively, the "BOA Released Parties") from
any and all liabilities, claims, suits, debts, causes of action and the
like of any kind, character or nature whatsoever, known or unknown,
fixed or contingent that the Borrowers and the Parent, or any of them,
may have, or claim to have, against each of the such BOA Released
Parties from the beginning of time until and through the dates of
execution and delivery of this Letter Agreement, and (b) hereby
covenants and agrees never to institute or cause to be instituted or
continue prosecution of any suit or other form of action or proceeding
of any kind or nature whatsoever against any BOA Released Party, by
reason of or in connection with any of the foregoing matters,
liabilities, claims, suits, debts or causes of action.
Section 13.2 Release.
(a) In order to induce the Administrative Agent and the
Lenders to execute, deliver and perform this Agreement and the other
Loan Documents, each of the Borrowers and the Parent (i) represents and
warrants that there are no claims, causes of
100
action, suits, debts, obligations, liabilities, demands of any kind,
character or nature whatsoever, fixed or contingent, which the
Borrowers or the Parent, or any of them, may have, or claim to have,
against the Administrative Agent and the Lenders, or any of them, with
respect to the transactions contemplated by this Agreement and the
other Loan Documents, and each of the Borrowers or the Parent hereby
releases, acquits and forever discharges each of the Administrative
Agent and the Lenders and their respective agents, employees, officers,
directors, servants, representatives, attorneys, affiliates, successors
and assigns (collectively, the "Released Parties") from any and all
liabilities, claims, suits, debts, causes of action and the like of any
kind, character or nature whatsoever, known or unknown, fixed or
contingent that the Borrowers and the Parent, or any of them, may have,
or claim to have, against each of the such Released Parties from the
beginning of time until and through the Agreement Date, and (b) hereby
covenants and agrees never to institute or cause to be instituted or
continue prosecution of any suit or other form of action or proceeding
of any kind or nature whatsoever against any Released Party, by reason
of or in connection with any of the foregoing matters, liabilities,
claims, suits, debts or causes of action.
[Remainder Of This Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
BORROWERS:
BR HOLDING, INC.
/s/ XXXXXXXXX X. XXXXXXXX
------------------------------------------
By: Xxxxxxxxx X. Xxxxxxxx (SEAL)
-----------------------------------
Title: VP-Finance
---------------------------
CAPITAL SPORTS PROPERTIES, INC.
/s/ XXXXXXXXX X. XXXXXXXX
------------------------------------------
By: Xxxxxxxxx X. Xxxxxxxx (SEAL)
-----------------------------------
Title: Vice President
---------------------------
HOST COMMUNICATIONS, INC.
/s/ XXXXXXXXX X. XXXXXXXX
------------------------------------------
By: Xxxxxxxxx X. Xxxxxxxx (SEAL)
-----------------------------------
Title: Vice President
---------------------------
DATASOUTH COMPUTER CORPORATION
/s/ XXXXXXXXX X. XXXXXXXX
------------------------------------------
By: Xxxxxxxxx X. Xxxxxxxx (SEAL)
-----------------------------------
Title: Executive VP-Finance & Admin.
----------------------------
PARENT:
BULL RUN CORPORATION, as a Guarantor
/s/ XXXXXXXXX X. XXXXXXXX
------------------------------------------
By: Xxxxxxxxx X. Xxxxxxxx (SEAL)
-----------------------------------
Title: VP-Finance
---------------------------
LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent and as a
Lender
/s/ XXXXX X. XXXXXX
------------------------------------------
By: Xxxxx X. Xxxxxx (SEAL)
-----------------------------------
Title: Managing Director
---------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
/s/ XXXXXXX XXXXXXX
------------------------------------------
By: Xxxxxxx Xxxxxxx (SEAL)
-----------------------------------
Title: Director
---------------------------
BANK OF AMERICA, N.A.
/s/ XXXXX X. XXXXXXX
------------------------------------------
By: Xxxxx X. Xxxxxxx (SEAL)
-----------------------------------
Title: Senior Vice President
---------------------------
BANK ONE, KENTUCKY, N.A.
/s/ XXXXXXX X. XXXXXX
------------------------------------------
By: Xxxxxxx X. Xxxxxx (SEAL)
-----------------------------------
Title: Vice President
----------------------------
