EXHIBIT 10.20
EXECUTION COUNTERPART
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AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of July 2, 1998
among
XXXXXXXX HEALTH CARE, INC.,
THE LENDERS LISTED HEREIN,
SUNTRUST BANK, ATLANTA, as Issuing Bank,
SUNTRUST BANK, ATLANTA, as Agent, and
WACHOVIA BANK, N.A., as Co-Agent
for the Issuing Bank and the Lenders
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TABLE OF CONTENTS
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; CONSTRUCTION ........................................1
Section 1.01 Definitions...............................................1
Section 1.02 Accounting Terms and Determination...................... 16
Section 1.03 Other Definitional Terms.................................16
Section 1.04 Exhibits and Schedules...................................16
ARTICLE II. LOANS AND LETTERS OF CREDIT.....................................17
Section 2.01 Commitments; Use of Proceeds.............................17
Section 2.02 Swing Line Subfacility...................................18
Section 2.03 Letter of Credit Subfacility.............................20
Section 2.04 Notes; Repayment of Principal............................23
Section 2.05 Voluntary Reduction of Commitments.......................23
Section 2.06 Increase of the Commitments..............................24
ARTICLE III. GENERAL LOAN TERMS.............................................25
Section 3.01 Funding Notices..........................................25
Section 3.02 Disbursement of Funds....................................26
Section 3.03 Interest.................................................28
Section 3.04 Interest Periods.........................................29
Section 3.05 Fees.....................................................29
Section 3.06 Voluntary Prepayments of Borrowings......................30
Section 3.07 Payments, etc............................................31
Section 3.08 Interest Rate Not Ascertainable, etc.....................34
Section 3.09 Illegality...............................................34
Section 3.10 Increased Costs..........................................35
Section 3.11 Lending Offices..........................................36
Section 3.12 Funding Losses...........................................37
Section 3.13 Assumptions Concerning Funding of Eurodollar Advances....37
Section 3.14 Apportionment of Payments................................37
Section 3.15 Termination of Commitments...............................38
Section 3.16 Sharing of Payments, Etc.................................38
Section 3.17 Capital Adequacy.........................................38
Section 3.18 Letter of Credit Obligations Absolute....................39
ARTICLE IV. CONDITIONS TO BORROWINGS........................................40
Section 4.01 Conditions Precedent to Initial Loans....................40
Section 4.02 Conditions to Each Loan..................................42
ARTICLE V. REPRESENTATIONS AND WARRANTIES...................................43
Section 5.01 Corporate Existence; Compliance with Law.................43
Section 5.02 Corporate Power; Authorization...........................43
Section 5.03 Possession of Franchises, Licenses, Etc..................43
Section 5.04 Enforceable Obligations..................................44
Section 5.05 No Legal Bar.............................................44
Section 5.06 No Material Litigation...................................44
Section 5.07 Investment Company Act, Etc..............................44
Section 5.08 Margin Regulations.......................................44
Section 5.09 Compliance With Environmental Laws.......................44
Section 5.10 Insurance................................................45
Section 5.11 No Default...............................................45
Section 5.12 No Burdensome Restrictions...............................46
Section 5.13 Taxes....................................................46
Section 5.14 Subsidiaries.............................................46
Section 5.15 Financial Statements.....................................46
Section 5.16 ERISA....................................................47
Section 5.17 Patents, Trademarks, Licenses, Etc.......................48
Section 5.18 Ownership of Property....................................48
Section 5.19 Indebtedness.............................................48
Section 5.20 Financial Condition......................................48
Section 5.21 Labor Matters............................................49
Section 5.22 Payment or Dividend Restriction..........................49
Section 5.23 Sharing Agreements.......................................49
Section 5.24 Disclosure...............................................49
Section 5.25. Year 2000 Compliant......................................50
ARTICLE VI. AFFIRMATIVE COVENANTS ..........................................50
Section 6.01 Corporate Existence, Etc.................................50
Section 6.02 Compliance with Laws, Etc................................50
Section 6.03 Payment of Taxes and Claims, Etc.........................50
Section 6.04 Keeping of Books.........................................50
Section 6.05 Visitation, Inspection, Etc..............................50
Section 6.06 Insurance; Maintenance of Properties.....................51
Section 6.07 Reporting Covenants......................................51
Section 6.08 Financial Covenants......................................55
Section 6.09 Notices Under Certain Other Indebtedness.................55
Section 6.10 Additional Credit Parties and Collateral.................55
ARTICLE VII. NEGATIVE COVENANTS.............................................56
Section 7.01 Indebtedness.............................................56
Section 7.02 Liens....................................................57
Section 7.03 Mergers, Sales, Acquisitions.............................58
Section 7.04 Investments, Loans, Etc..................................59
Section 7.05 Letters of Credit........................................60
Section 7.06 Sale and Leaseback Transactions..........................61
Section 7.07 Transactions with Affiliates.............................61
Section 7.08 Changes in Business......................................61
Section 7.09 ERISA....................................................61
Section 7.10. Limitation on Payment Restrictions Affecting Consolidated
Companies................................................62
Section 7.11 Actions Under Certain Documents..........................62
Section 7.12 Additional Negative Pledges..............................62
Section 7.13 Changes in Fiscal Year...................................62
Section 7.14 Issuance of Stock by Subsidiaries........................62
Section 7.15 Dividends................................................62
ARTICLE VIII. EVENTS OF DEFAULT.............................................63
Section 8.01 Payments.................................................63
Section 8.02 Covenants Without Notice.................................63
Section 8.03 Other Covenants..........................................63
Section 8.04 Representations..........................................63
Section 8.05 Non-Payments of Other Indebtedness.......................63
Section 8.06. Defaults Under Other Agreements; Change In Control
Provisions...............................................63
Section 8.07 Bankruptcy...............................................64
Section 8.08 ERISA....................................................64
Section 8.09 Judgments................................................65
Section 8.10 Ownership of Credit Parties..............................65
Section 8.11 Change in Control of Borrower............................65
Section 8.12 Default Under Other Credit Documents; Sharing Agreements.66
ARTICLE IX. THE AGENT.......................................................66
Section 9.01 Appointment of Agent.....................................66
Section 9.02 Authorization of Agent with Respect to the Security
Documents................................................67
Section 9.03 Nature of Duties of Agent................................67
Section 9.04 Lack of Reliance on the Agent............................67
Section 9.05 Certain Rights of the Agent..............................68
Section 9.06 Reliance by Agent........................................68
Section 9.07 Indemnification of Agent.................................68
Section 9.08 The Agent in its Individual Capacity.....................69
Section 9.09 Holders of Notes.........................................69
Section 9.10 Successor Agent..........................................69
ARTICLE X. MISCELLANEOUS....................................................70
Section 10.01 Notices.................................................70
Section 10.02 Amendments, Etc.........................................70
Section 10.03 No Waiver; Remedies Cumulative..........................71
Section 10.04 Payment of Expenses, Etc................................71
Section 10.05 Right of Setoff.........................................73
Section 10.06 Benefit of Agreement; Assignments; Participations.......73
Section 10.07 Governing Law; Submission to Jurisdiction...............75
Section 10.08 Independent Nature of Lenders' Rights...................76
Section 10.09 Counterparts............................................76
Section 10.10 Effectiveness; Termination of Commitments; Survival.....77
Section 10.11 Severability............................................77
Section 10.12 Independence of Covenants...............................77
Section 10.13 Change in Accounting Principles, Fiscal Year or Tax
Laws....................................................77
Section 10.14 Headings Descriptive; Entire Agreement..................78
SCHEDULES
Schedule 5.01 Organization and Ownership of
Subsidiaries
Schedule 5.05 Certain Pending and Threatened
Litigation
Schedule 5.09(a) Environmental Compliance
Schedule 5.09(b) Environmental Notices
Schedule 5.09(c) Environmental Permits
Schedule 5.11 No Defaults
Schedule 5.12 Burdensome Restrictions
Schedule 5.13 Tax Filings and Payments
Schedule 5.14 Material Subsidiaries
Schedule 5.16 Employee Benefit Matters
Schedule 5.17 Patent, Trademark, License, and
Other Intellectual Property
Matters
Schedule 5.18 Ownership of Properties
Schedule 5.19 Labor and Employment Matters
Schedule 5.22 Dividend Restrictions
Schedule 5.23 Disclosure
Schedule 7.01 Existing Indebtedness
Schedule 7.02 Existing Liens
EXHIBITS
Exhibit A - Form of Amended and Restated Revolving Credit Note
Exhibit B - Form of Amended and Restated Swing Line Note
Exhibit C - Subsidiary Guaranty Agreement
Exhibit D - Form of Closing Certificate
Exhibit E - Form of Opinion of Powell, Goldstein,
Xxxxxx & Xxxxxx, LLP
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Letter of Credit Application
Exhibit H - Form of Compliance Certificate
Exhibit A
AMENDED AND RESTATED CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") made and entered into as
of July 2, 1998, by and among XXXXXXXX HEALTH CARE, INC., a Georgia
corporation (the "Borrower"), SUNTRUST BANK, ATLANTA, a banking corporation
organized under the laws of the State of Georgia ("SunTrust"), the other
banks and lending institutions listed on the signature pages hereof, and any
assignees of SunTrust, or such other banks and lending institutions which
become "Lenders" as provided herein (SunTrust and such other banks, lending
institutions, and assignees referred to collectively herein as the
"Lenders"), SUNTRUST BANK, ATLANTA, as the issuing bank (the "Issuing Bank"),
SUNTRUST BANK, ATLANTA, as Agent (the "Agent") for the Issuing Bank and the
Lenders, and WACHOVIA BANK, N.A., as Co-Agent (the "Co-Agent") for the
Issuing Bank and the Lenders;
W I T N E S S E T H:
WHEREAS, on March 6, 1996, Borrower entered into a Credit
Agreement by and among Borrower, SunTrust, the other banks and lending
institutions listed on the signature pages thereof, and SunTrust Bank,
Atlanta in its capacity as agent for such banks and lending institutions (the
"Original Credit Agreement");
WHEREAS, in connection with this Agreement, Borrower, the
Lenders, and the Agent wish to amend and restate the Original Credit
Agreement to increase the revolving credit facility thereunder and provide
for a letter of credit subfacility, all as more particularly evidenced herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Borrower, the Lenders, the Issuing Bank, the
Agent and the Co-Agent agree, upon the terms and subject to the conditions
set forth herein as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
Section I.1. Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the meanings
herein specified (to be equally applicable to both the singular and plural
forms of the terms defined):
"Account Party" shall mean the Borrower or any Guarantor in whose
account a Letter of Credit is to be or has been issued.
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time as (i) the Revolving Loans, which Advances shall be
made or outstanding as Base Rate Advances or Eurodollar Advances, as the case
may be, or (ii) a Swing Line Loan, which Advances shall be made or
outstanding as Swing Rate Advances.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person.
"Agent" shall mean, SunTrust Bank, Atlanta, a Georgia banking
corporation, as Agent for the Lenders and the Issuing Bank under this
Agreement and the other Loan Documents and any successor agent appointed
pursuant to Section 9.10 hereto.
"Agreement" shall mean this Credit Agreement, as hereafter
amended, restated, supplemented or otherwise modified from time to time.
"Applicable Margin" shall mean the percentage designated below
based on the Leverage Ratio of the Consolidated Companies, measured
quarterly, effective in the next fiscal quarter immediately following the
date of delivery of the Compliance Certificate to the Agent:
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Applicable Margin
Leverage Ratio (LIBOR Advance)
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Less than 1.00:1.00 0.50%
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Greater than or equal
to 1.00:1.00 and less
than 2.00:1.00 0.625%
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Greater than or equal
to 2.00:1.00 and less
than 2.50:1.00 0.75%
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Greater than or equal
to 2.50:1.00 and less
than 3.00:1.00 1.00%
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For purposes of the foregoing, (i) the Applicable Margin as of the
Closing Date is 1.00% and shall remain 1.00% through and including August 31,
1998 (by way of example, as of the first day of the second fiscal quarter of
the Borrower the Applicable Margin shall be calculated based upon the
Leverage Ratio of the Consolidated Companies in the Compliance Certificate
delivered by the Borrower for the first fiscal quarter of such year); and
(ii) if the Borrower fails to provide the Compliance Certificate and related
financial statements required under Section 6.07(c) within the applicable
time period set forth therein, the Applicable Margin shall be adjusted to
1.00% on the first day of the following fiscal quarter until such Compliance
Certificate and related financial statements are delivered.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by the Issuing Bank or a Lender and an Eligible
Assignee in accordance with the terms of this Agreement and substantially in
the form of Exhibit F.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. Section 101 et seq.).
"Base Rate" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the
higher of (i) the rate which the Agent publicly announces from time to time
as its prime lending rate, as in effect from time to time, and (ii) the
Federal Funds Rate, as in effect from time to time, plus one-half of one
percent (0.50%) per annum. The Agent's prime lending rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to customers; the Agent may make commercial loans or other loans at
rates of interest at, above or below the Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding as
a Revolving Loan bearing interest based on the Base Rate.
"Base Rate Borrowing" shall mean a Borrowing made up of Base Rate
Advances.
"Borrower" shall mean Xxxxxxxx Health Care, Inc., a Georgia
corporation, its successors and permitted assigns.
"Borrowing" shall mean the incurrence by Borrower under the
Commitments of Advances of one Type concurrently having the same Interest
Period or the continuation or conversion of an existing Borrowing or
Borrowings in whole or in part.
"Business Day" shall mean any day excluding Saturday, Sunday and
any other day on which banks are required or authorized to close in Atlanta,
Georgia and, if the applicable Business Day relates to Eurodollar Advances,
any day on which trading is not carried on by and between banks in deposits
of the applicable currency in the applicable interbank Eurocurrency market.
"Capital Lease" shall mean, as applied to any Person, any lease
of any property (whether real, personal or mixed) by such Person as lessee
which would, in accordance with GAAP, be required to be classified and
accounted for as a capital lease on a balance sheet of such Person, other
than, in the case of Borrower or any of its Subsidiaries, any such lease
under which Borrower or a wholly-owned Subsidiary of Borrower is the lessor.
"Capital Lease Obligation" shall mean, with respect to any
Capital Lease, the amount of the obligation of the lessee thereunder which
would, in accordance with GAAP, appear on a balance sheet of such lessee in
respect of such Capital Lease.
"Change in Control Provision" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Borrower evidencing debt or a
commitment to extend loans in excess of $500,000.00 which requires, or
permits the holder(s) of such Indebtedness of Borrower to require that such
Indebtedness of Borrower be redeemed, repurchased, defeased, prepaid or
repaid, either in whole or in part, or the maturity of such Indebtedness of
Borrower to be accelerated in any respect, as a result of a change in
ownership of the capital stock of Borrower or voting rights with respect
thereto.
"Closing Certificate" shall mean that certificate of an officer
of the Borrower substantially in the form of Exhibit D attached hereto.
"Closing Date" shall mean July 2, 1998 or such later date on
which the conditions to the initial loans set forth in Sections 4.01 and 4.02
are satisfied.
"Co-Agent" shall mean, Wachovia Bank, N.A., a national banking
association, as Co-Agent for the Lenders and the Issuing Bank under this
Agreement and the other Loan Documents.
"Commitment" shall mean, for any Lender at any time, the
revolving credit facility severally established by such Lender pursuant to
Section 2.01, including, without duplication, such Lender's Pro Rata Share
of the Letter of Credit Subfacility and, in the case of SunTrust, the Swing
Line Subfacility, as the same may be decreased from time to time as a result
of any reduction thereof pursuant to Section 2.05, or increased from time to
time as a result of any increase thereof pursuant to Section 2.06, any
assignment thereof pursuant to Section 10.06, or any amendment thereof
pursuant to Section 10.02.
"Commitment Fee" shall have the meaning ascribed to it in Section
3.05(a).
"Compliance Certificate" shall mean the certificate delivered by
the Borrower to the Agent substantially in the form of Exhibit H attached
hereto.
"Consolidated Companies" shall mean, collectively, Borrower and
all of its Subsidiaries.
"Consolidated EBITDA" shall mean for any period, an amount equal
to the sum for the trailing four fiscal quarter period of Consolidated Net
Income (Loss), plus, to the extent deducted therefrom in determining such
Consolidated Net Income (Loss), the sum of (i) taxes based on income (whether
paid or deferred), (ii) Consolidated Interest Expense, (iii) depreciation of
assets, and (iv) amortization.
"Consolidated EBITR" shall mean for any period, an amount equal
to the sum for the trailing four fiscal quarter period of Consolidated Net
Income (Loss) of the Consolidated Companies, plus, to the extent deducted
therefrom in determining Consolidated Net Income (Loss), the sum of (i)
Consolidated Interest Expense, (ii) taxes based on income (whether paid or
deferred), and (iii) Rental Obligations for such period.
"Consolidated Funded Debt" shall mean, as of any date of
determination, the Funded Debt of the Consolidated Companies.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense of the Consolidated Companies (including without limitation,
interest expense attributable to Capital Leases, all capitalized interest,
all commissions, discounts and other fees and charges owed with respect to
bankers acceptance financing, net costs (i.e., costs minus benefits) under
Interest Rate Contracts, and total interest expense (whether shown as
interest expense or as loss and expenses on sales of receivables) under a
receivables purchase facility) determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, with reference to
any period, the net income (or deficit) of the Consolidated Companies for
such period (taken as a cumulative whole), after deducting all operating
expenses, provisions for all taxes and reserves (including reserves for
deferred income taxes) and all other proper deductions, all determined in
accordance with GAAP on a consolidated basis, after eliminating all
intercompany transactions and after deducting portions of income properly
attributable to minority interests, if any, in the stock and surplus of the
Subsidiaries of the Borrower.
"Consolidated Net Worth" shall mean the shareholders' equity of
the Borrower calculated in accordance with GAAP, less treasury stock.
"Contractual Obligation" of any Person shall mean any provision
of any security issued by such Person or of any agreement, instrument or
undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"Credit Documents" shall mean, collectively, this Agreement, the
Notes, the Guaranty Agreement, all Letter of Credit Applications and all
other instruments, documents, certificates, agreements and writings executed
in connection herewith, each as amended, restated, supplemented or otherwise
modified from time to time.
"Credit Parties" shall mean, collectively, each of the Borrower
and the Guarantor.
"Default" shall mean any condition or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful
money of the United States of America.
"Eligible Assignee" shall mean (i) a commercial bank organized
under the laws of the United States or any state thereof having total assets
in excess of $1,000,000,000.00 or any commercial finance or asset-based
lending Affiliate of any such commercial bank and (ii) any Lender.
"Environmental Laws" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating
to pollution or protection of the environment and relating to public health
and safety, relating to (i) emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial toxic or
hazardous constituents, substances or wastes, including without limitation,
any Hazardous Substance, petroleum including crude oil or any fraction
thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any fraction thereof,
any petroleum product or other waste, chemicals or substances regulated by
any Environmental Law, and (iii) underground storage tanks and related
piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (a) the
Clean Air Act (42 U.S.C. Section 7401 et seq.), (b) the Clean Water Act (33
U.S.C. Section 1251 et seq.), (c) the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.), (d) the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), (e) the Comprehensive Environmental
Response Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act (42 U.S.C. Section 9601 et seq.), and (f)
all applicable national and local laws or regulations with respect to
environmental control.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a group
of which that Person is a member and which is under common control within the
meaning of the regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or outstanding as
a Revolving Loan bearing interest equal to LIBOR plus the Applicable Margin
for such Advance.
"Eurodollar Borrowing" shall mean a Borrowing made up of
Eurodollar Advances.
"Event of Default" shall have the meaning provided in Article
VIII.
"Executive Officer" shall mean with respect to any Person, the
President, Vice Presidents, Chief Financial Officer, Treasurer, Secretary and
any Person holding comparable offices or duties.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member
banks of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent.
"Fiscal Year" shall mean any twelve calendar month period ending
on May 31 of any year; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., "Fiscal Year 1996") refer to the
Fiscal Year ending on the first Saturday occurring after May 30 of that year.
"Fiscal Year End" shall mean the last day of any Fiscal Year.
"Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (i) Consolidated EBITR to (ii) Fixed Charges for such period.
"Fixed Charges" shall mean, with reference to any period,
determined in accordance with GAAP on a consolidated basis, the sum of the
following for the Consolidated Companies, after eliminating all intercompany
items:
(a) Consolidated Interest Expense for such period; and
(b) all Rental Obligations payable as lessee under any operating
lease properly charged or chargeable to income during such period
in accordance with GAAP;
provided that any interest charges or rentals paid or accrued by any Person
acquired by the Borrower or any of its Subsidiaries during such period,
through purchase, merger, consolidation or otherwise, shall be included in
"Fixed Charges" only to the extent that the earnings of such Person are
taken into account in determining EBITR for such period.
"Funded Debt" shall mean, as applied to any Person, all
Indebtedness of such Person which by its terms or by the terms of any
instrument or agreement relating thereto matures, or which is otherwise
payable or unpaid, one year or more from, or is directly or indirectly
renewable or extendable at the option of the debtor to a date one year or
more (including an option of the debtor under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of
one year or more) from, the date of the creation thereof, provided that
Funded Debt shall include, as at any date of determination, any portion of
such Indebtedness outstanding on such date which matures on demand or within
one year from such date (whether by sinking fund, other required prepayment,
or final payment at maturity) and shall also include all Indebtedness of such
Person for borrowed money outstanding under a line of credit, guidance line,
revolving credit, bankers acceptance facility or similar arrangement for
borrowed money, including, without limitation, all unpaid drawings under
letters of credit and unreimbursed amounts pursuant to letter of credit
reimbursement agreements, regardless of the maturity date thereof.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or, if no such
statements are promulgated, then such other statements by such other entity
as may be approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of determination.
"Guarantors" shall mean, (i) Culinary Solutions, Inc. and (ii)
all other Material Subsidiaries of the Borrower, and their respective
successors and permitted assigns.
"Guaranty" shall mean any contractual obligation, contingent or
otherwise (other than letters of credit), of a Person with respect to any
Indebtedness or other obligation or liability of another Person, including
without limitation, any such Indebtedness, obligation or liability directly
or indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual obligations (contingent
or otherwise) arising through any agreement to purchase, repurchase, or
otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or any agreement to provide funds for the payment or discharge
thereof (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain solvency, assets, level of
income, or other financial condition, or to make any payment other than for
value received. The amount of any Guaranty shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in
respect of which guaranty is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in
good faith.
"Guaranty Agreement" shall mean the Subsidiary Guaranty Agreement
executed initially by Culinary Solutions, Inc. and thereafter by any and all
Material Subsidiaries of the Borrower in favor of the Lenders, the Issuing
Bank and the Agent, substantially in the form of Exhibit C as the same may be
amended, restated or supplemented from time to time.
"Hazardous Substances" shall have the meaning assigned to that
term in the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Acts
of 1986.
"Hostile Acquisition" shall mean any Investment resulting in
control of a Person involving a tender offer or proxy contest that has not
been recommended or approved by the board of directors of the Person that is
the subject of the Investment prior to the first public announcement or
disclosure relating to such Investment.
"Indebtedness" of any Person shall mean, without duplication (i)
all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase
price of property or services, and obligations evidenced by bonds,
debentures, notes or other similar instruments); (ii) all Capital Lease
Obligations; (iii) all Guaranties of such Person; (iv) Indebtedness of others
secured by any Lien upon property owned by such Person, whether or not
assumed; and (v) obligations or other liabilities under currency contracts,
Interest Rate Contracts, or similar agreements or combinations thereof.
Notwithstanding the foregoing, in determining the Indebtedness of any Person,
there shall be included all obligations of such Person of the character
referred to in clauses (i) through (v) above deemed to be extinguished under
GAAP but for which such Person remains legally liable except to the extent
that such obligations (x) have been defeased in accordance with the terms of
the applicable instruments governing such obligations and (y) the accounts
or other assets dedicated to such defeasance are not included as assets on
the balance sheet of such Person.
"Interest Period" shall mean (i) as to any Eurodollar Advances,
the interest period selected by the Borrower pursuant to Section 3.04(a)
hereof, and (ii) as to any Swing Rate Advances, the interest period requested
by the Borrower and agreed to by the Swing Line Lender pursuant to Section
3.01(a)(ii) hereof.
"Interest Rate Contract" shall mean all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements,
interest rate insurance and other agreements and arrangements designed to
provide protection against fluctuations in interest rates, in each case as
the same may be from time to time amended, restated, renewed, supplemented or
otherwise modified.
"Investment" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"Issuing Bank" shall mean SunTrust Bank, Atlanta or any other
Lender who hereafter may be designated as an Issuing Bank pursuant to an
Assignment and Acceptance Agreement or otherwise.
"Lender" or "Lenders" shall mean SunTrust, the other banks and
lending institutions listed on the signature pages hereof, and each assignee
thereof, if any, pursuant to Section 10.06(c).
"Lending Office" shall mean for each Lender, the office such
Lender may designate in writing from time to time to Borrower and the Agent
with respect to each Type of Loan.
"Letter of Credit Application" shall mean an "Application and
Agreement for Standby Letter of Credit" duly executed and delivered by the
Borrower or any of its Subsidiaries substantially in the form of Exhibit G
attached hereto.
"Letter of Credit Obligations" shall mean, with respect to
Letters of Credit, as at any date of determination, the sum of (a) the
maximum aggregate amount which at such date of determination is available to
be drawn by the beneficiaries thereof (assuming the conditions for drawing
thereunder have been met) under all Letters of Credit outstanding, plus (b)
the aggregate amount of all drawings under Letters of Credit honored by the
Agent not theretofore reimbursed by the Borrower.
"Letter of Credit Subfacility" shall mean the $5,000,000 letter
of credit facility established by the Lenders pursuant to which the Issuing
Bank will issue Letters of Credit for the account of an Account Party
pursuant to Section 2.03 hereof.
"Letters of Credit" shall mean all letters of credit issued
pursuant to Article II hereof after the Closing Date by the Issuing Bank for
the account of the Borrower pursuant to the Commitments.
"Leverage Ratio" shall mean for any period the ration of (i)
Total Funded Debt to (ii) EBITDA.
"LIBOR" shall mean, for any Interest Period, with respect to
Eurodollar Advances the offered rate for deposits in U.S. Dollars, for a
period comparable to the Interest Period and in an amount comparable to the
Agent's portion of such Advances, appearing on the Telerate Screen Page 3750
as of 11:00 A.M. (London, England time) on the day that is two London
Business Days prior to the first day of the Interest Period. If two or more
of such rates appear on the Reuters Screen LIBO Page, the rate for that
Interest Period shall be the arithmetic mean of such rates. If the foregoing
rate is unavailable from the Telerate Page for any reason, then such rate
shall be determined by the Agent from Reuters Screen LIBO Page or, if such
rate is also unavailable on such service, then on any other interest rate
reporting service of recognized standing designated in writing by the Agent
to Borrower and the other Lenders; in any such case rounded, if necessary, to
the next higher 1/16 of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest, lien,
charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title
retention agreement.
"Loans" shall mean, collectively, the Revolving Loans and the
Swing Line Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time.
"Material Subsidiary" shall mean (i) each Credit Party other than
the Borrower, and (ii) each other Subsidiary of the Borrower, now existing or
hereafter established or acquired, that at any time prior to the Maturity
Date, has or acquires total assets in excess of $1,000,000.00, or that
accounted for or produced more than 5% of the Consolidated Net Income (Loss)
of the Borrower on a consolidated basis during any of the three most recently
completed Fiscal Years of the Borrower, or that is otherwise material to the
operations or business of the Borrower or another Material Subsidiary.
"Materially Adverse Effect" shall mean any materially adverse
change in (i) the business, results of operations, financial condition,
assets or prospects of the Consolidated Companies, taken as a whole, (ii) the
ability of Borrower to perform its obligations under this Agreement, or (iii)
the ability of the other Credit Parties (taken as a whole) to perform their
respective obligations under the Credit Documents.
"Maturity Date" shall mean the earlier of (i) July 2, 2003, and
(ii) the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the
provisions of Article VIII.
"MFCI" shall mean Xxxxxxxx Fresh Cooking, Inc., a wholly-owned
subsidiary of Xxxxxxxx.
"Xxxxxxxx" shall mean Xxxxxxxx Restaurants, Inc., a Delaware
corporation.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Proceeds" shall mean, with respect to any equity offering or
issuance of Subordinated Debt, (i) all cash received with respect thereto,
whether by way of deferred payment pursuant to a promissory note, a
receivable or otherwise (and interest paid thereon), plus (ii) the higher of
the book value or the fair market value of any assets (including any stock)
received with respect thereto, in each case, net of reasonable and customary
sale expenses, fees and commissions incurred and taxes paid or expected to be
payable within the next twelve months in connection therewith.
"Notes" shall mean, collectively, the Revolving Credit Notes and
the Swing Line Note.
"Notice of Borrowing" shall have the meaning provided in Section
3.01(a)(i).
"Notice of Conversion/Continuation" shall have the meaning
provided in Section 3.01(b)(i).
"Notice of Swing Line Loan" shall have the meaning provided in
Section 3.01(b)(ii).
"Obligations" shall mean all amounts owing to the Agent, the
Co-Agent, the Issuing Bank or any Lender pursuant to the terms of this
Agreement or any other Credit Document, including, without limitation, all
Loans (including all principal and interest payments due thereunder), Letter
of Credit Obligations, fees, expenses, indemnification and reimbursement
payments, indebtedness, liabilities, and obligations of the Credit Parties,
direct or indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof.
"Payment Office" shall mean with respect to payments of
principal, interest, fees or other amounts relating to the Revolving Loans,
the Swing Line Loans, Letter of Credit Obligations and all other Obligations,
the office specified as the "Payment Office" for the Agent on the signature
page of the Agent, or such other location as to which the Agent shall have
given written notice to the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted by
Section 7.02.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, trust or other entity, or any
government or political subdivision or agency, department or instrumentality
thereof.
"Plan" shall mean any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer
Plan, or any plan, fund, program, arrangement or practice providing for
medical (including post-retirement medical), hospitalization, accident,
sickness, disability, or life insurance benefits.
"Pro Rata Share" shall mean, with respect to each of the
Commitments of each Lender, each Revolving Loan to be made by, and each
payment (including, without limitation, any payment of principal, interest or
fees) to be made to each Lender with respect to the Revolving Loans, the
percentage designated as such Lender's Pro Rata Share of such Commitments,
such Loans or such payments, as applicable, set forth in Section 2.01, in
each case as such Pro Rata Share may change from time to time as a result of
assignments or amendments made pursuant to this Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to time.
"Rental Obligations" shall mean, with reference to any period,
the aggregate amount of all rental obligations for which the Consolidated
Companies are directly or indirectly liable (as lessee or as guarantor or
other surety but without duplication) under all leases in effect at any time
during such period (other than operating leases for motor vehicles,
computers, office equipment and other similar items used in the ordinary
course of business of the Consolidated Companies), including all such amounts
for which any Person was liable during the period immediately prior to the
date such Person became a Subsidiary of the Borrower or was merged into or
consolidated with the Borrower or a Subsidiary of the Borrower, as determined
in accordance with GAAP.
"Requested Commitment Amount" shall have the meaning set forth in
Section 2.06(a).
"Required Lenders" shall mean at any time, the Lenders holding at
least 66 2/3% of the committed funds under the Commitments, whether or not
advanced, or, following the termination of all of the Commitments, the
Lenders holding at least 66 2/3% of the aggregate outstanding Advances at
such time.
"Requirement of Law" for any person shall mean the articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reuters Screen" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuters
Monitor Money Rates Service (or such other page as may replace that page on
that service for the purpose of displaying rates comparable to LIBOR).
"Revolving Credit Notes" shall mean, collectively, the amended
and restated promissory notes evidencing the Revolving Loans in the form
attached hereto as Exhibit A, either as originally executed or as hereafter
amended, modified or supplemented.
"Revolving Loans" shall mean, collectively, the revolving loans
made to the Borrower by the Lenders pursuant to Section 2.01.
"RTI" shall mean Ruby Tuesday, Inc., a Georgia corporation.
"Security Documents" shall mean, collectively, the Guaranty
Agreement and each other guaranty agreement, mortgage, deed of trust,
security agreement, pledge agreement, or other security or collateral
document guaranteeing or securing the Obligations, now or hereafter executed,
as the same may be amended, restated, supplemented or otherwise modified from
time to time.
"Sharing Agreements" shall mean, collectively, (i) that certain
Distribution Agreement, dated as of March 2, 1996 by and among Xxxxxxxx, MFCI
and Borrower, as amended (ii) that certain License Agreement, dated as of
March 2, 1996, by and between MFCI and Borrower, as amended (iii) that
certain License Agreement, dated as of March 2, 1996, by and between
Borrower and RTI, as amended (iv) that certain Amended and Restated Tax
Allocation and Indemnification Agreement, dated as of March 2, 1996, by and
among Xxxxxxxx, Borrower, MFCI and certain other subsidiaries of Xxxxxxxx, as
amended and (v) that certain Agreement Respecting Employee Benefit Matters,
dated as of March 2, 1996, by and among Xxxxxxxx, MFCI and Borrower, as
amended.
"Subordinated Debt" shall mean all Indebtedness of Borrower
subordinated to all obligations of Borrower or any other Credit Party arising
under this Agreement, the Notes, and the Guaranty Agreement, created,
incurred or assumed on terms and conditions satisfactory in all respects to
the Agent, the Issuing Bank and the Lenders, including without limitation,
with respect to interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies, and subordination provisions, as
evidenced by the written approval of the Agent, the Issuing Bank and the
Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships,
joint ventures, and associations) regardless of its jurisdiction of
organization or formation, at least a majority of the total combined voting
power of all classes of voting stock or other ownership interests of which
shall, at the time as of which any determination is being made, be owned by
such Person, either directly or indirectly through one or more other
Subsidiaries.
"Swing Line Lender" shall mean SunTrust and its successors and
assigns.
"Swing Line Note" shall mean the amended and restated promissory
note of the Borrower payable to the order of the Swing Line Lender, in
substantially the form of Exhibit B hereto, evidencing the maximum aggregate
principal indebtedness of the Borrower to the Swing Line Lender with respect
to outstanding Swing Line Loans made by the Swing Line Lender pursuant to the
Swing Line Subfacility, either as originally executed or as it may be from
time to time supplemented, modified, amended, renewed or extended.
"Swing Line Subfacility" shall mean $10,000,000, as such amount
may be reduced pursuant to Section 2.05 or amended or modified pursuant to
Section 10.02 hereof.
"Swing Rate" shall mean, as to any Swing Line Loan, the interest
rate per annum agreed to by the Borrower and the Swing Line Lender for such
Loan for the requested Interest Period pursuant to the procedure set forth in
Section 3.01(a)(ii).
"Swing Rate Advance" shall mean any Advance outstanding hereunder
bearing interest based upon the Swing Rate.
"Swing Line Loan" shall mean a Loan made by the Swing Line Lender
pursuant to Section 2.02 hereof.
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States, or
any state, local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and all
interest, penalties, additions to tax and similar liabilities with respect
thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Dow Xxxxx
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Total Capitalization" shall mean, as of any date of
determination, the sum of (i) Total Funded Debt, plus (ii) Consolidated Net
Worth.
"Total Funded Debt" shall mean, for any Person Consolidated
Funded Debt plus the present value of all minimum lease commitments to make
payments with respect to operating leases of such Person, determined based
upon a discount of ten percent (10%) in accordance with the Standard & Poor's
methodology.
"Type" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances, Eurodollar Advances or Swing Rate Advances.
"Voting Stock" shall mean securities of any class or classes, the
holders of which are entitled to elect all of the corporate directors (or
Persons performing similar functions).
"Year 2000 Compliant" shall mean that neither the performance nor
functionality of the operating systems for Borrower's or its Subsidiaries'
computers, all software applications that run on Borrower's and its
Subsidiaries' computers, and all of Borrower's and its Subsidiaries'
machinery and equipment, is affected by dates prior to, during, spanning or
after January 1, 2000, and shall include, but not be limited to (a)
accurately processing (including, but not limited to calculating, comparing
and sequencing) date and time data from, into, and between the years 1999 and
2000 and leap year calculations, (b) functioning without error, interruption
or decreased performance relating to such date and time data, (c) accurately
processing such date and time data when used in combination with other
technology, if the other technology properly exchanges date and time data,
(d) accurate date and time data century recognition, (e) calculations that
accurately use same century and multi-century formulas and date and time
values, (f) date and time data interface values which reflect the correct
century, and (g) processing, storing, receiving and outputting all date and
time data in a format that accurately indicates the century of the date and
time data.
Section I.2. Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made, all
financial statements required to be delivered hereunder shall be prepared,
and all financial records shall be maintained in accordance with, GAAP.
Section I.3. Other Definitional Terms. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Article, Section, Schedule, Exhibit and like
references are to this Agreement unless otherwise specified.
Section I.4. Exhibits and Schedules. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE II.
LOANS AND LETTERS OF CREDIT
Section II.1. Commitments; Use of Proceeds.
(a) Commitments. Subject to and upon the terms and conditions
herein set forth, each Lender severally establishes in favor of the
Borrower, from on and after the Closing Date, but prior to the Maturity
Date, a revolving credit facility in favor of the Borrower in aggregate
principal at any one time outstanding not to exceed the sum set forth
opposite such Lender's name below, ("Commitment"), as the same may be
reduced from time to time pursuant to the terms hereof:
ProRata Share of
Commitments Commitments
SunTrust Bank, Atlanta $25,000,000.00 33.3333%
Wachovia Bank, N.A. $20,000,000.00 26.6667%
NationsBank, N.A. $15,000,000.00 20.0000%
First Union National Bank $15,000,000.00 20.0000%
-------------- ---------
Total $75,000,000.00 100.0000%
============== =========
The Lenders, subject to and upon the terms and conditions set forth
herein, from time to time, agree to make to the Borrower Revolving
Loans in an aggregate principal amount outstanding at any time not to
exceed such Lender's Commitment. Borrower shall be entitled to repay
and reborrow Revolving Loans in accordance with the provisions hereof.
In addition to Revolving Loans, the Borrower may request, from on and
after the Closing Date but prior to the Maturity Date, that the Swing
Line Lender extend to the Borrower Swing Line Loans subject to and upon
the terms and conditions herein set forth. Notwithstanding any
provision of this Agreement to the contrary, within the limits of the
Commitments, the Borrower may borrow, repay and reborrow under the
terms of this Agreement, provided however, that (i) the Borrower may
neither borrow nor reborrow should there exist a Default or an Event of
Default, (ii) the aggregate outstanding amount of Advances after giving
effect to each Borrowing plus the Letter of Credit Obligations shall
not exceed the aggregate Commitments.
(b) Amount and Terms of Loans. Each Revolving Loan shall, at
the option of Borrower, be made or continued as, or converted into,
part of one or more Borrowings that shall consist entirely of Base Rate
Advances or Eurodollar Advances. Each Swing Line Loan shall consist of
Swing Rate Advances made by the Swing Line Lender in accordance with
the procedure described in Section 2.02. Each Eurodollar Borrowing
shall be in a principal amount of not less than $5,000,000 or a greater
integral multiple of $1,000,000, and each Base Rate Borrowing shall be
in a principal amount of not less than $1,000,000 or a greater integral
multiple of $100,000. At no time shall the aggregate number of
Eurodollar Borrowings outstanding under this Article II exceed six (6).
(c) Use of Proceeds. The proceeds of Revolving Loans, Swing
Line Loans and Letters of Credit shall be used solely to refinance
Indebtedness of Borrower existing on the Closing Date, to make
Investments and finance acquisitions permitted by the terms hereof, to
fund working capital needs of the Borrower and for other general
corporate purposes of the Borrower.
Section II.2. Swing Line Subfacility.
(a) Swing Line Subfacility. Subject to and upon the terms and
conditions herein set forth, the Swing Line Lender severally
establishes in favor of the Borrower, from on and after the Closing
Date, but prior to the Maturity Date, its Swing Line Subfacility within
its Commitment. Sections 3.01 and 3.02 shall apply equally to
Borrowings made under the Swing Line Subfacility and Borrowings
requested or made through Section 2.01. The Swing Line Lender, subject
to and upon the terms and conditions set forth herein, from time to
time, agrees to make to the Borrower Swing Line Loans in an aggregate
principal amount outstanding at any time not to exceed the Swing Line
Subfacility. Borrower shall be entitled to repay and reborrow Swing
Line Loans in accordance with the provisions hereof. Notwithstanding
any provision of this Agreement to the contrary, the sum of (x) the
aggregate principal amount of the Revolving Loans, plus (y) the
aggregate principal amount of the Swing Line Loans at any one time
outstanding, plus (z) the Letter of Credit Obligations, shall not
exceed the aggregate Commitments.
(b) Amount and Terms of Swing Line Loans. Each Swing Line Loan
shall be made as a Swing Rate Advance from the Swing Line Lender at the
Swing Rate and Interest Period established by the Borrower and the
Swing Line Lender on the date of each request for a Swing Line Loan in
accordance with Section 3.01(a)(ii). Each Swing Line Loan shall be in
a principal amount of not less than $100,000 or a greater integral
multiple of $10,000. At no time shall the aggregate number of Swing
Line Loans outstanding under this Article II exceed two.
(c) Repayment by Revolving Loans. If (i) any Swing Line Loan
shall be outstanding upon the occurrence of an Event of Default, or
(ii) after giving effect to any request for a Swing Line Loan or a
Revolving Loan, the aggregate principal amount of the Revolving Loans,
Swing Line Loans and Letter of Credit Obligations outstanding to the
Swing Line Lender would exceed the Swing Line Lender's Commitment, then
each Lender hereby agrees, upon request from the Swing Line Lender, to
make a Revolving Loan (which shall be initially funded as a Base Rate
Borrowing) in an amount equal to such Lender's Pro Rata Share of the
outstanding principal amount of the Swing Line Loans (the "Refunded
Swing Line Loans") outstanding on the date such notice is given. On or
before 11:00 a.m. (local time for the Agent) on the first Business Day
following receipt by each Lender of a request to make Revolving Loans
as provided in the preceding sentence, each such Lender (other than the
Swing Line Lender) shall deposit in an account specified by the Agent
to the Lenders from time to time the amount so requested in same day
funds, whereupon such funds shall be immediately delivered to the Swing
Line Lender (and not the Borrower) and applied to repay the Refunded
Swing Line Loans. On the day such Revolving Loans are made, the Swing
Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of the Revolving Loans made by the
Swing Line Lender. Upon the making of any Revolving Loan pursuant to
this clause, the amount so funded shall become due under such Lender's
Revolving Credit Note and shall no longer be owed under the Swing Line
Note. Each Lender's obligation to make the Revolving Loans referred to
in this clause shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any
setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default or Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any
other Credit Party; (iv) the acceleration or maturity of any Loans or
the termination of the Commitments after the making of any Swing Line
Loan; (v) any breach of this Agreement by the Borrower or any other
Lender; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(d) Purchase of Participations. In the event that (i) the
Borrower or any Subsidiary is subject to any bankruptcy or insolvency
proceedings as provided in Section 8.07 or (ii) if the Swing Line
Lender otherwise requests, each Lender shall acquire without recourse
or warranty an undivided participation interest equal to such Lender's
Pro Rata Share of the Commitments of any Swing Line Loan otherwise
required to be repaid by such Lender pursuant to the preceding clause
by paying to the Swing Line Lender on the date on which such Lender
would otherwise have been required to make a Revolving Loan in respect
of such Swing Line Loan pursuant to the preceding clause, in same day
funds, an amount equal to such Lender's Pro Rata Share of such Swing
Line Loan, and no Revolving Loans shall be made by such Lender pursuant
to the preceding clause. From and after the date on which any Lender
purchases an undivided participation interest in a Swing Line Loan
pursuant to this clause, the Swing Line Lender shall distribute to such
Lender (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participation
interest is outstanding and funded) its ratable amount of all payments
of principal and interest in respect of such Swing Line Loan in like
funds as received; provided, however, that in the event such payment
received by the Swing Line Lender is required to be returned to the
Borrower, such Lender shall return to the Swing Line Lender the portion
of any amounts which such Lender had received from the Swing Line
Lender in like funds.
(e) Swing Line Loans Following Notice of Event of Default.
Notwithstanding the foregoing provisions of this Section 2.02, no
Lender shall be required to make a Revolving Loan to Borrower for the
purpose of refunding a Refunded Swing Line Loan pursuant to Section
2.02(c) above or to purchase a participating interest in a Swing Line
Loan pursuant to Section 2.02(d) above if a Default or Event of Default
has occurred and is continuing, and, prior to the making by the Swing
Line Lender of such Swing Line Loan, the Swing Line Lender had received
written notice from the Borrower or any Lender specifying that such
Default or Event of Default had occurred and was continuing (and
identifying the same as a Default or Event of Default hereunder).
Section II.3. Letter of Credit Subfacility.
(a) Terms of Issuance of Letters of Credit. Subject to, and
upon the terms and conditions set forth herein, the Borrower may
request, in accordance with the provisions of this Section 2.03 and the
other terms of this Agreement, that on and after the Closing Date but
prior to the Maturity Date, that the Issuing Bank, on behalf of the
Lenders, and in reliance on the agreements of the Lenders set forth
below, issue a Letter of Credit or Letters of Credit for the account of
the Borrower or any Guarantor; provided that the Borrower or such
Guarantor executes and delivers to the Agent and the Issuing Bank a
Letter of Credit Application, provided further that (i) no Letter of
Credit shall have an expiration date that is later than one year after
the date of issuance thereof (provided that a Letter of Credit may
provide that it is extendible for consecutive one year periods); (ii)
the Borrower shall not request that the Issuing Bank issue any Letter
of Credit, if, after giving effect to such issuance, the sum of the
aggregate Letter of Credit Obligations plus the aggregate outstanding
principal amount of the Advances would exceed the aggregate amount of
the Commitments; and (iii) the Borrower shall not request that the
Issuing Bank issue any Letter of Credit if after giving effect to such
issuance, the aggregate Letter of Credit Obligations would exceed the
amount of the Letter of Credit Subfacility. To the extent of any
conflict between the terms of this Agreement and any Letter of Credit
Application, this Agreement shall control.
(b) Notice of Issuance of Letter of Credit; Agreement to
Issue. Whenever the Borrower desires the issuance of a Letter of
Credit, it shall, in addition to any application and documentation
procedures reasonably required by the Agent and the Issuing Bank for
the issuance of such Letter of Credit, deliver to the Agent and the
Issuing Bank a written notice no later than 11:00 AM (local time for
the Agent) at least two (2) Business Days in advance of the proposed
date of issuance and the Agent shall promptly forward a copy of such
notice to each Lender. Each such notice shall specify (i) the Account
Party, (ii) the proposed date of issuance (which shall be a Business
Day); (iii) the face amount of the Letter of Credit; (iv) the
expiration date of the Letter of Credit; and (v) the name and address
of the beneficiary with respect to such Letter of Credit and shall
attach a precise description of the documentation and a verbatim text
of any certificate to be presented by the beneficiary of such Letter of
Credit which would require the Issuing Bank to make payment under the
Letter of Credit, provided that the Issuing Bank may require reasonable
changes in any such documents and certificates in accordance with its
customary letter of credit practices, and provided further, that no
Letter of Credit shall require payment against a conforming draft to be
made thereunder on the same Business Day that such draft is presented
if such presentation is made after 11:00 AM (Atlanta, Georgia time).
In determining whether to pay any draft under any Letter of Credit, the
Issuing Bank shall be responsible only to determine that the documents
and certificate required to be delivered under its Letter of Credit
have been delivered, and that they comply on their face with the
requirements of the Letter of Credit. Promptly after receiving the
notice of issuance of a Letter of Credit, the Agent shall notify each
Lender of such Lender's respective participation therein, determined in
accordance with its respective Pro Rata Share of the Commitments.
(c) Agreement to Issue Letters of Credit. The Issuing Bank
agrees, subject to the terms and conditions set forth in this
Agreement, to issue for the account of such Account Party a Letter of
Credit in a face amount equal to the face amount requested under
paragraph (b) above, following its receipt of a notice required by
paragraph (d) below. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Bank a participation in such
Letter of Credit and any drawing thereunder in an amount equal to such
Lender's Pro Rata Share of the Commitments multiplied by the face
amount of such Letter of Credit. Upon issuance and amendment or
extension of any Letter of Credit, the Issuing Bank shall provide a
copy of each such Letter of Credit issued, amended or extended
hereunder to the Agent and each Lender.
(d) Payment of Amounts Drawn Under Letters of Credit. In the
event of any request for a drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Bank shall notify the Borrower, the
Agent and the Lenders on or before the date on which the Agent intends
to honor such drawing, and the Borrower and the Account Party (if other
than the Borrower) jointly and severally agree to reimburse the Issuing
Bank on the day on which such drawing is honored in an amount, in
same day funds, equal to the amount of such drawing.
(i) Notwithstanding any provision of this Agreement to
the contrary, to the extent that any Letter of Credit or portion
thereof remains outstanding on the Maturity Date, for any reason
whatsoever, the Borrower, each Guarantor and the Lenders hereby
agree that the beneficiary or beneficiaries thereof shall be
deemed to have made a drawing under the Commitments of all
available amounts outstanding pursuant to such Letters of Credit
on the Maturity Date, which amount shall be held by the Issuing
Bank as cash collateral for its remaining obligations pursuant to
such Letters of Credit. provided however, that if any such
Letter of Credit Outstanding on the Maturity Date is
(i) surrendered for cancellation by the beneficiary,
(ii) expires, or (iii) is terminated for any reason, prior to the
Issuing Bank honoring a request for a drawing under such Letter
of Credit for less than the full amount available under such
Letter of Credit, the Issuing Bank shall promptly refund (x) the
cash collateral to the extent of the undrawn amount of each
Letter of Credit plus (y) the amount of each Letter of Credit
honored by the Issuing Bank not theretofore reimbursed by the
Borrower. The immediately preceding sentence will survive
termination of this Agreement.
(ii) As between the Borrower, any Account Party and the
Issuing Bank, the Borrower and such Account Party assume all risk
of the acts and omissions of, or misuse of, the Letters of Credit
issued by the Issuing Bank, by the respective beneficiaries of
such Letters of Credit, other than losses resulting from the
gross negligence or willful misconduct of the Issuing Bank. In
furtherance and not in limitation of the foregoing but subject to
the exception for the Issuing Bank's gross negligence or willful
misconduct set forth above, the Issuing Bank shall not be
responsible (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of such
Letters of Credit, even if it should in fact prove to be in any
or all respects insufficient, inaccurate, fraudulent or forged or
otherwise invalid; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof in whole or in part which may
prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply
fully with the conditions required in order to draw upon such
Letter of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, telecopy or otherwise; (v) for good
faith errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of
Credit or the proceeds thereof; (vii) for the misapplication by
the beneficiary of any such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the
Issuing Bank.
(e) Payment of Letter of Credit Draws by Banks. In the event
that the Borrower or the Account Party shall fail to reimburse the
Issuing Bank as provided in paragraph (d) above, the Issuing Bank shall
promptly notify each Lender of the unreimbursed amount of such drawing
and of such Lender's respective participation therein. Each Lender
shall make available to the Issuing Bank an amount equal to its
respective participation, in immediately available funds, at the office
of the Issuing Bank specified in such notice not later than 1:00 P.M.
(Atlanta, Georgia time) on the Business Day after the date notified by
the Issuing Bank and such amount shall be deemed to be outstanding
hereunder as an Advance. Each Lender shall be obligated to make such
Advance hereunder regardless of whether the conditions precedent in
Article IV are satisfied and regardless of whether such Advance
complies with the minimum borrowing requirements hereunder. In the
event that any such Lender fails to make available to the Issuing Bank
the amount of such Lender's participation in such Letter of Credit, the
Issuing Bank shall be entitled to recover such amount on demand from
such Lender together with interest. The Issuing Bank shall distribute
to each Lender which has paid all amounts payable under this
Section with respect to any Letter of Credit, such Lender's Pro Rata
Share of all payments received by the Issuing Bank from the Account
Party in reimbursement of drawings honored by the Issuing Bank under
such Letter of Credit when such payments are received.
Section II.4. Notes; Repayment of Principal.
(a) The Borrower's obligations to pay the principal of, and
interest on, the Revolving Loans to each Lender shall be evidenced by
the records of the Agent and such Lender and by the Revolving Credit
Note payable to such Lender (or the assignor of such Lender) in the
amount of such Lender's Commitment completed in conformity with this
Agreement.
(b) The Borrower's obligations to pay the principal of, and
interest on, the Swing Line Loans to the Swing Line Lender shall be
evidenced by the records of the Swing Line Lender and the Swing Line
Note payable to such Lender (or the assignor of such Lender) completed
in conformity with this Agreement.
(c) All outstanding Borrowings outstanding under the Notes
shall be due and payable in full on the Maturity Date.
Section II.5. Voluntary Reduction of Commitments. Upon at least
three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Agent, Borrower shall have the right, without premium or
penalty, to terminate the unutilized Commitments, in part or in whole,
provided that (i) any such termination shall apply to proportionately and
permanently reduce the Commitments of each of the Lenders, and (ii) any
partial termination pursuant to this Section 2.05 shall be in an amount of at
least $5,000,000 and integral multiples of $1,000,000. Unless otherwise
specified by the Borrower in the applicable notice, each of the Swing Line
Subfacility and the Letter of Credit Subfacility shall not be reduced by any
such reduction unless and until the aggregate Commitments are reduced to an
amount less than the sum of the Swing Line Subfacility and the Letter of
Credit Subfacility in which case each of the Swing Line Subfacility shall be
reduced as determined by the Borrower and the Agent.
Section II.6. Increase of the Commitments.
(a) Borrower may, at any time by written notice to the Agent
and the Lenders, request that the Commitments be increased up to an amount
not to exceed $100,000,000 in the aggregate (the "Requested Commitment
Amount") on a pro rata basis based on the Pro Rata Shares of the Lenders. No
Lender (or any successor thereto) shall have any obligation to increase its
Commitment or its other obligations under this Agreement and the other Credit
Documents, and any decision by a Lender to increase its Commitment shall be
made in its sole discretion independently from any other Lender, the Agent or
the Co-Agent. Within fifteen (15) Business Days from each Lender's receipt
of such request from the Borrower, each Lender shall notify the Agent in
writing of whether or not it will agree to increase its Commitment and by
what amount it will agree to increase its Commitment, up to its Pro Rata
Share of the Requested Commitment Amount. Decisions to increase a Commitment
must be affirmatively communicated in writing and shall not be presumed based
upon a failure to respond to Borrower's request.
(b) In the event that the aggregate amount to which the Lenders
are willing to increase their Commitments is less than the Requested
Commitment Amount based on the written notices delivered by the Lenders to
the Agent, the Agent shall first offer to the Lenders who have agreed to
increase their Commitments the opportunity to further increase their
Commitments up to an amount equal to the Requested Commitment Amount. Such
Lenders shall promptly respond in writing to the Agent of whether or not it
will agree to further increase its Commitment and by what amount it will
agree to further increase its Commitment. Within five (5) Business Days
after receipt of all responses from such Lenders, the Agent shall inform the
Borrower and all Lenders in writing of the amount by which each Lender will
increase its Commitment.
(c) In the event that the aggregate amount to which the Lenders
are willing to increase their Commitments is less than the Requested
Commitment Amount based on the notice from the Agent to the Borrower and all
Lenders, the Borrower shall have the right, within sixty days (60) after
receipt of such notice from the Agent, to obtain commitments from one or more
new banks or financial institutions in an aggregate amount such that the
existing Commitments, plus the aggregate principal amount by which the
Lenders are willing to increase their Commitments, plus the aggregate
principal amount of the new commitments by the new banks or financial
institutions does not exceed the Requested Commitment Amount; provided,
however, that (1) the new banks or financial institutions must be acceptable
to the Agent and Required Lenders in their sole discretion, which acceptance
will not be unreasonably withheld or delayed, and (2) the new banks or
financial institutions must become parties to this Agreement pursuant to a
joinder agreement in form and substance satisfactory to the Agent and the
Required Lenders, pursuant to which (x) they shall be granted all of the
rights that existing Lenders have under this Agreement and the other Credit
Documents, (y) they shall assume the same liabilities and obligations that
the existing Lenders have under this Agreement and (z) the existing Lenders
and such new banks or financial institutions shall agree to either purchase
or sell outstanding Advances, as the case may be such that each Lender
(existing and new) shall have outstanding Advances in an amount equal to its
Pro Rate Share of all Advances then outstanding.
ARTICLE III.
GENERAL LOAN TERMS
Section III.1. Funding Notices.
(a) (i) Whenever Borrower desires to make a Borrowing with
respect to the Commitments (other than one resulting from a conversion
or continuation pursuant to Section 3.01(b)(i)), it shall give the
Agent prior written notice (or telephonic notice promptly confirmed in
writing) of such Borrowing (a "Notice of Borrowing"), such Notice of
Borrowing to be given prior to 12:00 noon (local time for the Agent) at
the Payment Office of the Agent (x) one Business Day prior to the
requested date of such Borrowing in the case of Base Rate Advances, and
(y) three Business Days prior to the requested date of such Borrowing
in the case of Eurodollar Advances. Notices received after 12:00 noon
shall be deemed received on the next Business Day. Each Notice of
Borrowing shall be irrevocable and shall specify the aggregate
principal amount of the Borrowing, the date of Borrowing (which shall
be a Business Day), and whether the Borrowing is to consist of Base
Rate Advances or Eurodollar Advances and (in the case of Eurodollar
Advances) the Interest Period to be applicable thereto.
(ii) Whenever Borrower desires to obtain a Swing Line Loan, it
shall give the Swing Line Lender prior written notice (or telephonic
notice promptly confirmed in writing) of such Swing Line Loan (a
"Notice of Swing Line Loan"), such Notice of Swing Line Loan to be
given prior to 11:00 A.M. (local time for Agent) at the Payment Office
of the Swing Line Lender on the Business Day of the such Swing Line
Loan. Notices received after 11:00 A.M. shall be deemed received on
the next Business Day. Each Notice of Swing Line Loan shall specify
the aggregate principal amount of the Swing Line Loan, the date of the
Swing Line Loan (which shall be a Business Day) and the requested
Interest Period to be applicable thereto. The Swing Line Lender, shall
within two (2) hours of receipt of such notice, provide to the Borrower
telephonic or written notice of a quote of the Swing Rate to be
applicable to such Swing Line Loan for the amount and the Interest
Period requested by the Borrower. Within one (1) hour of receipt of
such quote, the Borrower shall notify the Swing Line Lender whether or
not it has elected to accept the offered Swing Rate and if accepted,
the Swing Line Lender shall confirm such Borrowing in writing.
(b) (i) Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing under the Commitments consisting of Base
Rate Advances into a Borrowing consisting of Eurodollar Advances, or to
continue outstanding a Borrowing consisting of Eurodollar Advances for
a new Interest Period, it shall give the Agent at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each such Borrowing to be converted into or continued as
Eurodollar Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 A.M. (local
time for the Agent) on the date specified at the Payment Office of the
Agent. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify the aggregate principal amount of the
Advances to be converted or continued, the date of such conversion or
continuation and the Interest Period to be applicable thereto. If,
upon the expiration of any Interest Period in respect of any Borrowing
consisting of Eurodollar Advances, Borrower shall have failed to
deliver the Notice of Conversion/Continuation, Borrower shall be deemed
to have elected to convert or continue such Borrowing to a Borrowing
consisting of Base Rate Advances. So long as any Executive Officer of
Borrower has knowledge that any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into or
continued as (upon expiration of the current Interest Period)
Eurodollar Advances unless the Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any Borrowing of
Eurodollar Advances shall be permitted except on the last day of the
Interest Period in respect thereof.
(ii) Upon the expiration of the applicable Interest Period with
respect to any Swing Line Loan, the Borrower shall repay such Swing
Line Loan to the Swing Line Lender, and in the event that the other
Lenders have purchased a participation in such Swing Line Loan pursuant
to Section 2.02 hereof, the Swing Line Lender shall distribute such
payments pro rata amongst the Lenders participating therein.
(c) Without in any way limiting Borrower's obligation to
confirm in writing any telephonic notice, the Agent and the Swing Line
Lender may act without liability upon the basis of telephonic notice
believed by the Agent or the Swing Line Lender in good faith to be from
Borrower prior to receipt of written confirmation. In each such case,
Borrower hereby waives the right to dispute the Agent's or the Swing
Line Lender's record of the terms of such telephonic notice.
(d) The Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the Agent
pursuant to this Section 3.01 with respect to the Commitments.
Section III.2. Disbursement of Funds.
(a) No later than 12:00 noon (local time for the Agent) on the
date of each Borrowing pursuant to the Commitments (other than one
resulting from a conversion or continuation pursuant to Section
3.01(b)(i)), each Lender will make available its Pro Rata Share of the
amount of such Borrowing in immediately available funds at the Payment
Office of the Agent. The Agent will make available to Borrower the
aggregate of the amounts (if any) so made available by the Lenders to
the Agent in a timely manner by crediting such amounts to Borrower's
demand deposit account maintained with the Agent or at Borrower's
option, by effecting a wire transfer of such amounts to Borrower's
account specified by the Borrower, by the close of business on such
Business Day. In the event that the Lenders do not make such amounts
available to the Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the
manner described in the preceding sentence on the next Business Day
(with interest on such amount to begin accruing hereunder on such next
Business Day).
(b) No later than 3:00 p.m. (local time for the Swing Line
Lender) on the date of each Swing Line Loan (other than one resulting
from a continuation of a Swing Line Loan pursuant to 3.01(b)(ii)), the
Swing Line Lender will make available the amount of such Swing Line
Loan in immediately available funds by crediting such amount to the
Borrower's demand deposit account maintained with the Swing Line Lender
or, at Borrower's option, by effecting a wire transfer of such amounts
to Borrower's account specified by the Borrower.
(c) Unless the Agent shall have been notified by any Lender
prior to the date of a Borrowing that such Lender does not intend to
make available to the Agent such Lender's portion of the Borrowing to
be made on such date, the Agent may assume that such Lender has made
such amount available to the Agent on such date and the Agent may make
available to Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Agent by such Lender on the
date of Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest
at the Federal Funds Rate. If such Lender does not pay such
corresponding amount forthwith upon the Agent's demand therefor, the
Agent shall promptly notify Borrower, and Borrower shall immediately
pay such corresponding amount to the Agent together with interest at
the rate specified for the Borrowing which includes such amount paid
and any amounts due under Section 3.12 hereof. Nothing in this
subsection shall be deemed to relieve any Lender from its obligation to
fund its Commitments or its obligations pursuant to Section 2.02
hereunder or to prejudice any rights which Borrower may have against
any Lender as a result of any default by such Lender hereunder.
(d) All Borrowings under the Commitments (other than Swing Line
Loans) shall be loaned by the Lenders on the basis of their Pro Rata
Share of the Commitments. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fund its
Commitments hereunder.
Section III.3. Interest.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Revolving Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum equal to the
applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from
time to time; and
(ii) For Eurodollar Advances--LIBOR plus the Applicable
Margin.
(b) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Swing Line Loans made to Borrower from the
respective dates such principal amounts were advanced to maturity
(whether by acceleration, notice of prepayment or otherwise) at the
Swing Rate agreed to by the Borrower and the Swing Line Lender for each
such Swing Line Loan.
(c) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Loans, and all
other overdue amounts owing hereunder, shall bear interest from each
date that such amounts are overdue at the applicable rate plus two
percent (2%) per annum, provided however that for any Eurodollar
Advance or Swing Line Loan, at the end of the applicable Interest
Period, interest shall accrue at the Base Rate plus two percent (2%).
(d) Interest on each Loan shall accrue from and including the
date of such Loan to but excluding the date of any repayment thereof;
provided that, if a Loan is repaid on the same day made, one day's
interest shall be paid on such Loan. Interest on all outstanding Base
Rate Advances shall be payable quarterly in arrears on the last day of
each fiscal quarter, commencing on August 31, 1998. Interest on all
outstanding Eurodollar Advances shall be payable on the last day of
each Interest Period applicable thereto, and, in the case of Eurodollar
Advances having an Interest Period in excess of three months, on each
three month anniversary of the initial date of such Interest Period.
Interest on all outstanding Swing Rate Advances shall be payable
monthly in arrears on the last day of each fiscal quarter, commencing
on August 31, 1998. Interest on all Loans shall be payable on any
conversion of any Advances comprising such Loans into Advances of
another Type, prepayment (on the amount prepaid), at maturity (whether
by acceleration, notice of prepayment or otherwise) and, after
maturity, on demand.
(e) The Agent, upon determining LIBOR for any Interest Period,
shall promptly notify by telephone (confirmed in writing) or in writing
Borrower and the other Lenders. Any such determination shall, absent
manifest error, be final, conclusive and binding for all purposes.
Section III.4. Interest Periods.
(a) In connection with the making or continuation of, or
conversion into, each Borrowing of Eurodollar Advances, Borrower shall
select an Interest Period to be applicable to such Eurodollar Advances,
which Interest Period shall be either a 1, 2, 3 or 6 month period.
(b) In connection with the making or continuation of each Swing
Line Loan, Borrower shall request an Interest Period to be applicable
to such Swing Line Loan for a period equal to a minimum of one (1) day
and a maximum of thirty (30) days which request may be accepted by the
Swing Line Lender as provided herein.
(c) Notwithstanding paragraphs (a) and (b) of this Section 3.04:
(i) The initial Interest Period for any Borrowing of
Eurodollar Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting
of Base Rate Advances) and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, provided that if any
Interest Period in respect of Eurodollar Advances would otherwise
expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business
Day;
(iii) Any Interest Period in respect of Eurodollar Advances
which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period shall, subject to part (v) below, expire on the
last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall
extend beyond the Maturity Date.
Section III.5. Fees.
(a) Commitment Fee. Borrower shall pay to the Agent, for the
ratable benefit of each Lender, a commitment fee (the "Commitment Fee")
for the period commencing on the Closing Date to and including the
Maturity Date, payable quarterly in arrears on the last day of each
fiscal quarter, commencing on August 31, 1998, and on the Maturity
Date, equal to the percentage per annum designated below based on the
Leverage Ratio of the Consolidated Companies, multiplied by the average
daily unused portion of the Commitment of each Lender:
-----------------------------------------------------
Leverage Ratio Commitment Fee
=====================================================
Less than 2.00:1.00 0.20%
-----------------------------------------------------
Greater than or equal to 0.25%
2.00:1.00 and less than
2.50:1.00
-----------------------------------------------------
Greater than or equal to 0.30%
2.50:1.00 and less than
3.0:1.00
-----------------------------------------------------
For the purposes of computing the Commitment Fee, (i) outstanding
Letter of Credit Obligations shall not be usage of the Commitment, and
(ii) in addition to the utilization by Revolving Loans, the Commitment
of each Lender shall be deemed to be utilized by the amount of Swing
Line Loans extended by such Lender (or in which such Lender has
purchased a participation) but in no event shall the computation of any
other Lender's Commitment Fee be affected by the Swing Line Loans
extended by the Swing Line Lender unless and until a participation in
such Swing Line Loans is purchased by the other Lenders pursuant to
Section 2.02(d) hereof, and (iii) if the Borrower fails to provide the
Compliance Certificate and related financial statements required under
Section 6.07(c) within the applicable time period set forth therein,
the Commitment Fee shall be adjusted to 0.30% on the first day of the
following fiscal quarter until such Compliance Certificate and related
financial statements are delivered.
(b) Administrative Fees. The Borrower shall pay to the Agent
an administrative fee in the amount and on the dates previously agreed
in writing by Borrower with the Agent. The Borrower shall also pay to
each Issuing Bank, following receipt of an invoice, in reasonable
detail therefor, any customary fees charged by such Issuing Bank for
issuance and administration of its Letters of Credit, which fees shall
be fully earned when due, and non-refundable when paid.
Section III.6. Voluntary Prepayments of Borrowings.
(a) Borrower may, at its option, prepay Borrowings consisting
of Base Rate Advances at any time in whole, or from time to time in
part, in amounts aggregating $1,000,000 or any greater integral
multiple of $100,000, by paying the principal amount to be prepaid
together with interest accrued and unpaid thereon to the date of
prepayment. Borrowings consisting of Swing Rate Advances may be prepaid
at any time in whole, or from time to time in part, in amounts
aggregating $100,000 or any greater integral multiple of $10,000, by
paying the principal amount to be prepaid together with interest
accrued and unpaid thereon to the date of prepayment. Borrowings
consisting of Eurodollar Advances may be prepaid, at Borrower's option,
in whole, or from time to time in part, in amounts aggregating
$5,000,000 or any greater integral multiple of $1,000,000, by paying
the principal amount to be prepaid, together with interest accrued and
unpaid thereon to the date of prepayment, and all compensation payments
pursuant to Section 3.12 if such prepayment is made on a date other
than the last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with Section 3.06(c)
below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Agent of any intended prepayment of the
Revolving Loans not less than three Business Days prior to any
prepayment of Base Rate Advances or Eurodollar Advances. Borrower shall
give written notice (or telephonic notice confirmed in writing) to the
Agent of any intended prepayment of the Swing Line Loans not less than
one (1) Business Day prior to such prepayment of such Swing Line
Loans. Such notice, once given, shall be irrevocable. Upon receipt
of such notice of prepayment pursuant to the first sentence of this
paragraph (b), the Agent shall promptly notify each Lender of the
contents of such notice and of such Lender's Pro Rata Share of such
prepayment. Upon receipt of any notice of prepayment pursuant to the
second sentence of this paragraph (b), the Agent shall promptly notify
each Lender participating in such Swing Line Loan of the contents of
such notice and of such Lender's Pro Rata Share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to
Section 3.06(b), may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid, provided that (i) if
any prepayment of Eurodollar Advances made pursuant to a single
Borrowing of the Revolving Loans shall reduce the outstanding Advances
made pursuant to such Borrowing to an amount less than $5,000,000, such
Borrowing shall immediately be converted into Base Rate Advances; and
(ii) each prepayment made pursuant to a single Borrowing shall be
applied pro rata among the Advances comprising such Borrowing. In the
absence of a designation by Borrower, the Agent shall, subject to the
foregoing, make such designation in its discretion but using reasonable
efforts to avoid funding losses to the Lenders pursuant to Section
3.12. All voluntary prepayments shall be applied to the payment of
interest before application to principal.
Section III.7. Payments, etc.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents shall be
made without defense, set-off or counterclaim to the Agent not later
than 11:00 A.M. (local time for the Agent) on the date when due and
shall be made in Dollars in immediately available funds at its Payment
Office.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of
principal, interest, fees or other amounts payable hereunder or
thereunder (but excluding, except as provided in paragraph (iii)
hereof, any Taxes imposed on the overall net income of the Lenders or
the Issuing Bank pursuant to the laws of the jurisdiction in which the
principal executive office or appropriate Lending Office of such Lender
or the Issuing Bank is located). If any Taxes are so levied or
imposed, Borrower agrees (A) to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every net payment
of all amounts due hereunder and under the Notes and other Credit
Documents, after withholding or deduction for or on account of any such
Taxes (including additional sums payable under this Section 3.07), will
not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant
authority in accordance with applicable law. Borrower will furnish to
the Agent, the Co-Agent and the Issuing Bank and each Lender, within 30
days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such
payment by Borrower. Borrower will indemnify and hold harmless the
Agent, the Co-Agent, the Issuing Bank and each Lender and reimburse the
Agent, the Co-Agent, the Issuing Bank and each Lender upon written
request for the amount of any Taxes so levied or imposed and paid by
the Agent, the Co-Agent, the Issuing Bank or such Lender and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes were
correctly or illegally asserted. A certificate as to the amount of
such payment by such Lender, the Issuing Bank, the Agent or the
Co-Agent absent manifest error, shall be final, conclusive and binding
for all purposes provided that the Agent, the Co-Agent, the Issuing
Bank and each Lender shall use reasonable efforts to furnish Borrower
notice of the imposition of any Taxes as soon as practicable
thereafter; provided, however, that no delay or failure to furnish such
notice shall in any event release or discharge Borrower from its
obligations to the Agent, the Co-Agent, the Issuing Bank or such Lender
pursuant to Section 3.07(b) or otherwise result in any liability of the
Agent, the Co-Agent, the Issuing Bank or such Lender; provided that
such notice is provided to the Borrower within forty-five (45) days of
such Lender or the Issuing Bank obtaining knowledge of the application
of such Taxes to payments under this Agreement.
(ii) Each Lender or Issuing Bank that is organized under the laws of
any jurisdiction other than the United States of America or any State
thereof (including the District of Columbia) agrees to furnish to Borrower
and the Agent, prior to the time it becomes a Lender or Issuing Bank
hereunder, two copies of either U.S. Internal Revenue Service Form 4224 or
U.S. Internal Revenue Service Form 1001 or any successor forms thereto
(wherein such Lender claims entitlement to complete exemption from or
reduced rate of U.S. Federal withholding tax on interest paid by Borrower
hereunder) and to provide to Borrower and the Agent a new Form 4224 or Form
1001 or any successor forms thereto if any previously delivered form is
found to be incomplete or incorrect in any material respect or upon the
obsolescence of any previously delivered form; provided, however, that no
Lender or Issuing Bank shall be required to furnish a form under this
paragraph (ii) after the date that it becomes a Lender or Issuing Bank
hereunder if it is not entitled to claim an exemption from or a reduced
rate of withholding under applicable law.
(iii) Borrower shall also reimburse each Lender and the Issuing
Bank, upon written request, for any Taxes imposed (including,
without limitation, Taxes imposed on the overall net income of such
Lender or Issuing Bank or its respective Lending Office pursuant to the
laws of the jurisdiction in which the principal executive office or the
applicable Lending Office of such Lender or the Issuing Bank is
located) as such Lender or the Issuing Bank shall determine are payable
by such Lender or the Issuing Bank in respect of amounts paid by or on
behalf of Borrower to or on behalf of such Lender or the Issuing Bank
pursuant to paragraph (i) hereof.
(c) Subject to Section 3.04(c)(ii), whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to
the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the applicable rate
during such extension.
(d) All computations of interest and fees shall be made on the
basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) occurring in the period for
which such interest or fees are payable (to the extent computed on the
basis of days elapsed). Interest on Base Rate Advances shall be
calculated based on the Base Rate from and including the date of such
Loan to but excluding the date of the repayment or conversion thereof.
Interest on Eurodollar Advances and Swing Rate Advances shall be
calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Each determination by
the Agent of an interest rate or fee hereunder shall be made in good
faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
(e) Payment by the Borrower to the Agent in accordance with the
terms of this Agreement shall, as to the Borrower, constitute payment
to the Lenders under this Agreement.
Section III.8. Interest Rate Not Ascertainable, etc. In the
event that the Agent shall have determined (which determination shall be made
in good faith and, absent manifest error, shall be final, conclusive and
binding upon all parties) that on any date for determining LIBOR for any
Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Agent's position in
such market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
LIBOR, then, and in any such event, the Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the Lenders, of such
determination and a summary of the basis for such determination. Until the
Agent notifies Borrower that the circumstances giving rise to the suspension
described herein no longer exist, the obligations of the Lenders to make or
permit portions of the Revolving Loans to remain outstanding past the last
day of the then current Interest Periods as Eurodollar Advances shall be
suspended, and such affected Advances shall bear the same interest as Base
Rate Advances.
Section III.9. Illegality.
(a) In the event that any Lender or the Issuing Bank shall have
determined (which determination shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all
parties) at any time that the making or continuance of any Eurodollar
Advance or Letter of Credit has become unlawful by compliance by such
Lender or Issuing Bank in good faith with any applicable law,
governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Lender or Issuing Bank
shall give prompt notice (by telephone confirmed in writing) to
Borrower and to the Agent of such determination and a summary of the
basis for such determination (which notice the Agent shall promptly
transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make Eurodollar Advances or participate in such Letters
of Credit, as the case may be, or the Issuing Bank's obligation to
issue Letters of Credit shall be immediately suspended, and such Lender
shall make an Advance as part of the requested Borrowing of Eurodollar
Advances as a Base Rate Advance, which Base Rate Advance shall, for all
other purposes, be considered part of such Borrowing, and (ii) if the
affected Eurodollar Advance or Advances are then outstanding, Borrower
shall immediately, or if permitted by applicable law, no later than
the date permitted thereby, upon at least one Business Day's written
notice to the Agent and the affected Lender, convert each such Advance
into a Base Rate Advance or Advances, provided that if more than one
Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 3.09(b).
(c) Notwithstanding any other provision contained in this
Agreement, the Issuing Bank shall not be obligated to issue any Letter
of Credit, nor shall any Lender be obligated to purchase its
participation in any Letter of Credit to be issued hereunder, if the
issuance of such Letter of Credit or purchase of such participation
shall have become unlawful or prohibited by compliance by the Issuing
Bank or such Lender in good faith with any law, governmental rule,
guideline, request, order, injunction, judgment or decree (whether or
not having the force of law); provided that in the case of the
obligation of a Lender to purchase such participation, such Lender
shall have notified the Issuing Bank to such effect at least three (3)
Business Days' prior to the issuance thereof by the Issuing Bank, which
notice shall relieve the Issuing Bank of its obligation to issue such
Letter of Credit pursuant to Section 2.03 hereof.
Section III.10. Increased Costs.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or
in the interpretation of any law or regulation, or (y) the compliance
with any guideline or request from any central bank or other
governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally made after the
date hereof (whether or not having the force of law):
(i) any Lender (or its applicable Lending Office) shall
be subject to any tax, duty or other charge with respect to its
Eurodollar Advances or its obligation to make Eurodollar Advances
or the basis of taxation of payments to any Lender of the
principal of or interest on its Eurodollar Advances or its
obligation to make Eurodollar Advances shall have changed (except
for changes in the tax on the overall net income of such Lender
or its applicable Lending Office imposed by the jurisdiction in
which such Lender's principal executive office or applicable
Lending Office is located); or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender's applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its Eurodollar
Advances or its obligation to make Eurodollar Advances shall be
imposed on any Lender or its applicable Lending Office or the
London interbank market;
and as a result thereof there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurodollar
Advances (except to the extent already included in the determination of the
applicable interest rate for Eurodollar Advances) or its obligation to make
Eurodollar Advances, or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office, then Borrower
shall from time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b)), upon written notice from and
demand by such Lender on Borrower (with a copy of such notice and demand to
the Agent), pay to the Agent for the account of such Lender within five
Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower
and the Agent by such Lender in good faith and accompanied by a statement
prepared by such Lender describing in reasonable detail the basis for and
calculation of such increased cost, shall, except for manifest error, be
final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time,
because of the circumstances described in clauses (x) or (y) in Section
3.10(a) or any other circumstances beyond such Lender's reasonable
control arising after the date of this Agreement affecting such Lender
or the London interbank market or such Lender's position in such
market, LIBOR as determined by the Agent will not adequately and fairly
reflect the cost to such Lender of funding its Eurodollar Advances,
then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the other Lenders of
such advice;
(ii) Borrower's right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest
Periods as Eurodollar Advances shall be immediately suspended; and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of Eurodollar Advances as a Base Rate
Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
Section III.11. Lending Offices.
(a) Each Lender agrees that, if requested by Borrower, it will
use reasonable efforts (subject to overall policy considerations of
such Lender) to designate an alternate Lending Office with respect to
any of its Eurodollar Advances affected by the matters or circumstances
described in Sections 3.07(b), 3.08, 3.09 or 3.10 to reduce the
liability of Borrower or avoid the results provided thereunder, so long
as such designation is not disadvantageous to such Lender as reasonably
determined by such Lender, which determination shall be conclusive and
binding on all parties hereto. Nothing in this Section 3.11 shall
affect or postpone any of the obligations of Borrower or any right of
any Lender provided hereunder.
(b) If the Issuing Bank or any Lender that is organized under
the laws of any jurisdiction other than the United States of America or
any State thereof (including the District of Columbia) issues a public
announcement with respect to the closing of its lending offices in the
United States such that any withholdings or deductions and additional
payments with respect to Taxes may be required to be made by Borrower
thereafter pursuant to Section 3.07(b), such Lender or the Issuing Bank
shall use reasonable efforts to furnish Borrower notice thereof as soon
as practicable thereafter; provided, however, that no delay or failure
to furnish such notice shall in any event release or discharge Borrower
from its obligations to such Lender or the Issuing Bank pursuant to
Section 3.07(b) or otherwise result in any liability of such Lender or
the Issuing Bank; provided that such notice is provided to the Borrower
within forty-five (45) days of such Lender or the Issuing Bank
obtaining knowledge of the application of such Taxes to payments under
this Agreement.
Section III.12. Funding Losses. Borrower shall compensate each
Lender, upon its written request to Borrower (which request shall set forth
the basis for requesting such amounts in reasonable detail and which request
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all of the parties hereto), for all losses,
expenses and liabilities (including, without limitation, any interest paid by
such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Advances to the extent not recovered by such Lender in connection
with the re-employment of such funds and including loss of anticipated
profits), which the Lender may sustain: (i) if for any reason (other than a
default by such Lender) a borrowing of, or conversion to or continuation of,
Eurodollar Advances to Borrower does not occur on the date specified therefor
in a Notice of Borrowing, a Notice of Conversion/Continuation (whether or not
withdrawn), (ii) if any repayment (including mandatory prepayments and any
conversions pursuant to Section 3.09(b)) of any Eurodollar Advances to
Borrower occurs on a date which is not the last day of an Interest Period
applicable thereto, or (iii), if, for any reason, Borrower defaults in its
obligation to repay its Eurodollar Advances when required by the terms of
this Agreement.
Section III.13. Assumptions Concerning Funding of Eurodollar
Advances. Calculation of all amounts payable to a Lender under this Article
IV shall be made as though that Lender had actually funded its relevant
Eurodollar Advances through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such Eurodollar Advances in an
amount equal to the amount of the Eurodollar Advances and having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar Advances from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; provided, however,
that each Lender may fund each of its Eurodollar Advances in any manner it
sees fit and the foregoing assumption shall be used only for calculation of
amounts payable under this Article IV.
Section III.14. Apportionment of Payments. Aggregate principal
and interest payments in respect of Revolving Loans and Commitment Fees shall
be apportioned among all outstanding Commitments and Revolving Loans to which
such payments relate, proportionately to the Lenders' respective Pro Rata
Share of such Commitments and outstanding Revolving Loans. Each payment of
principal and interest of any Swing Line Loan shall be payable solely to the
Swing Line Lender except as provided in Section 2.02(d). The Agent shall
promptly distribute to each Lender at its payment office set forth beside its
name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Agent.
Section III.15. Termination of Commitments The unpaid
principal balance and all accrued and unpaid interest on the Notes will be
due and payable upon the first of the following dates or events to occur: (i)
acceleration of the maturity of any Note in accordance with the remedies
contained in Article VIII of this Agreement, or (ii) upon the expiration of
the Commitments.
Section III.16. Sharing of Payments, Etc. If any Lender or the
Issuing Bank shall obtain any payment or reduction (including, without
limitation, any amounts received as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code) of the Obligations (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Pro Rata Share of payments or reductions on
account of such obligations obtained by all the Lenders (other than payments
of principal, interest and fees with respect to the Swing Line Loans which
are payable solely to the Swing Line Lender or Lenders participating therein
pursuant to Section 2.02(d)), such Lender or the Issuing Bank shall forthwith
(i) notify each of the other Lenders, the Issuing Bank, Agent and the
Co-Agent of such receipt, and (ii) purchase from the other Lenders or the
Issuing Bank such participations in the affected obligations as shall be
necessary to cause such purchasing Lender or the Issuing Bank to share the
excess payment or reduction, net of costs incurred in connection therewith,
ratably with each of them, provided that if all or any portion of such excess
payment or reduction is thereafter recovered from such purchasing Lender or
the Issuing Bank or additional costs are incurred, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender or the Issuing
Bank is obligated to return such funds is required to pay interest on such
funds. Borrower agrees that any Lender or the Issuing Bank so purchasing a
participation from another Lender or the Issuing Bank pursuant to this
Section 3.16 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 or the Issuing Bank were the direct
creditor of Borrower in the amount of such participation.
Section III.17. Capital Adequacy. Without limiting any other
provision of this Agreement, in the event that any Lender or the Issuing Bank
shall have determined that any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital
adequacy not currently in effect or fully applicable as of the Closing Date,
or any change therein or in the interpretation or application thereof, or
compliance by such Lender or Issuing Bank with any request or directive
regarding capital adequacy not currently in effect or fully applicable as of
the Closing Date (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) from a central bank or
governmental authority or body having jurisdiction, does or shall have the
effect of reducing the rate of return on such Lender's or Issuing Bank's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or Issuing Bank could have achieved but for such law,
treaty, rule, regulation, guideline or order, or such change or compliance
(taking into consideration such Lender's or Issuing Bank's policies with
respect to capital adequacy) by an amount deemed by such Lender or Issuing
Bank to be material, then within ten (10) Business Days after written notice
and demand by such Lender or Issuing Bank (with copies thereof to the Agent),
Borrower shall from time to time pay to such Lender or Issuing Bank
additional amounts sufficient to compensate such Lender or Issuing Bank for
such reduction (but, in the case of outstanding Base Rate Advances, without
duplication of any amounts already recovered by such Lender or Issuing Bank
by reason of an adjustment in the applicable Base Rate). Each certificate as
to the amount payable under this Section 3.17 (which certificate shall set
forth the basis for requesting such amounts in reasonable detail), submitted
to Borrower by any Lender or Issuing Bank in good faith, shall, absent
manifest error, be final, conclusive and binding for all purposes.
Section III.18. Letter of Credit Obligations Absolute. The
obligation of each Account Party to reimburse the Issuing Bank for drawings
made under Letters of Credit issued for the account of the Account Party and
the Lenders' obligation to honor their participations purchased therein shall
be unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances, including without
limitation, the following circumstances:
(a) Any lack of validity or enforceability of any Letter of
Credit;
(b) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may have at
any time against a beneficiary or any transferee of any Letter of Credit (or
any Persons or entities for whom any such beneficiary or transferee may be
acting), any Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated transaction
(including without limitation any underlying transaction between the Borrower
or any of its Subsidiaries and Affiliates and the beneficiary for which such
Letter of Credit was procured);
(c) Any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect;
(d) Payment by the Issuing Bank under any Letter of Credit
against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit;
(e) Any other circumstance or happening whatsoever which is
similar to any of the foregoing; or
(f) the fact that a Default or an Event of Default shall have
occurred and be continuing.
Nothing in this Section 3.17 shall prevent an action against the Issuing Bank
for its gross negligence or willful misconduct in honoring drafts under the
Letters of Credit.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower
hereunder is subject to the satisfaction of the following conditions:
Section IV.1. Conditions Precedent to Initial Loans. At the
time of the making of the initial Loans hereunder on the Closing Date, all
obligations of Borrower hereunder incurred prior to the initial Loans and
prior to the obligation of the Issuing Bank to issue the initial Letter of
Credit (including, without limitation, Borrower's obligations to reimburse
fees and expenses payable to the Agent as previously agreed with Borrower),
shall have been paid in full, and the Agent shall have received the
following, in form and substance reasonably satisfactory in all respects to
the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly executed Revolving Credit Notes evidencing the
Revolving Credit Commitments and the duly executed Swing Line Note
evidencing the Swing Line Subfacility;
(c) the duly executed Guaranty Agreement;
(d) the duly executed Closing Certificate;
(e) certificates of the Secretaries or Assistant Secretaries of
the Credit Parties attaching and certifying copies of the resolutions
of the board of directors of the Credit Parties, authorizing as
applicable the execution, delivery and performance of the Credit
Documents by the Credit Parties party thereto;
(f) certificates of the Secretaries or an Assistant Secretary
of the Credit Parties certifying (i) the name, title and true signature
of each officer of the Credit Parties executing the Credit Documents,
and (ii) the bylaws of the Credit Parties;
(g) certified copies of the articles or certificate of
incorporation of the Credit Parties certified by the Secretaries of
State and by the Secretaries or Assistant Secretaries of the Credit
Parties, together with certificates of good standing or existence, as
may be available from the Secretaries of State of the jurisdiction of
incorporation or organization of the Credit Parties and each other
jurisdiction where the Credit Parties ownership of property or the
conduct of its business require it to be qualified, except where a
failure to be so qualified would not have a Materially Adverse Effect;
(h) acknowledgments from CSC Corporation as to its appointment
as agent for service of process for the Credit Parties;
(i) the favorable opinion of Powell, Goldstein, Xxxxxx &
Xxxxxx, LLP, counsel to the Borrower in the form of Exhibit E,
addressed to the Agent, the Co-Agent and each of the Lenders.
(j) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the
Credit Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit Documents and
the other documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired;
(k) certificates, reports and other information as the Agent
may reasonably request from any Consolidated Company in order to
satisfy the Lenders as to the absence of any material liabilities or
obligations arising from matters relating to employees of the
Consolidated Companies, including employee relations, collective
bargaining agreements, Plans and other compensation and employee
benefit plans;
(l) [Reserved]
(m) certified copies of the Sharing Agreements;
(n) certificate of insurance issued by the Borrower's insurers,
describing in reasonable detail the insurance maintained by the Borrower.
(o) the Agent shall have received, for its own account, all
costs and expenses incurred which have been invoiced and are payable on the
date hereof, including without limitation, all costs and expenses actually
incurred associated with the execution and delivery of this Agreement and the
other documents contemplated hereby. The Agent shall have received for the
account of King & Spalding, counsel to the Agent, all reasonable costs and
expenses actually incurred which have been invoiced and are due and payable
as of the date hereof.
(p) certificates, reports and other information as the Agent
may reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or obligations
arising from litigation (including without limitation, products liability and
patent infringement claims) pending or threatened against the Consolidated
Companies; and
(q) evidence assuring the Agent, the Co-Agent and the Lenders
that all corporate proceedings and all other legal matters in connection with
the authorization, legality, validity and enforceability of the Credit
Documents and the Transaction are in form and substance satisfactory to the
Lenders.
Section IV.2. Conditions to Each Loan. At the time of the
making of each Loan (but not including the continuation or conversion of any
Revolving Loan or in the same principal amount or any Revolving Loan pursuant
to Section 2.02(c)), including the initial Loans hereunder, (before as well
as immediately after giving effect to such Loans and to the proposed use of
the proceeds thereof), the following conditions shall have been satisfied or
shall exist:
(a) there shall exist no Default or Event of Default and no
Default or Event of Default shall result after giving effect to such
Loan;
(b) all representations and warranties by Borrower contained
herein shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on
and as of the date of such Loans;
(c) the Loans to be made and the use of proceeds thereof shall
not contravene, violate or conflict with, or involve the Agent, the
Co-Agent or any Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority applicable to Borrower;
(d) since the date of the most recent financial statements of
the Consolidated Companies described in Section 5.15 or delivered to
the Agent pursuant to Section 6.07, there shall have been no change
which has had or could reasonably be expected to have a Materially
Adverse Effect; and
(e) the Agent shall have received such other documents or legal
opinions as the Agent or any Lender may reasonably request, all in form
and substance reasonably satisfactory to the Agent.
Each request for a Borrowing or a Swing Line Loan and the
acceptance by Borrower of the proceeds thereof shall constitute a
representation and warranty by Borrower, as of the date of the Loans
comprising such Borrowing, that the applicable conditions specified in
Sections 4.01 and 4.02 have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all other Consolidated Companies)
represents and warrants as follows.
Section V.1. Corporate Existence; Compliance with Law. Each of
the Consolidated Companies is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation,
and each of the Consolidated Companies has the corporate power and authority
and the legal right to own and operate its property and to conduct its
business. Each of the Consolidated Companies (i) has the corporate power and
authority and the legal right to own and operate its property and to conduct
its business, (ii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership of property
or the conduct of its business requires such qualification, and (iii) is in
compliance with all Requirements of Law, where (a) the failure to have such
power, authority and legal right as set forth in clause (i), (b) the failure
to be so qualified or in good standing as set forth in clause (ii), or (c)
the failure to comply with Requirements of Law as set forth in clause (iii),
would reasonably be expected, in the aggregate, to have a Materially Adverse
Effect. The jurisdiction of incorporation or organization, and the ownership
of all issued and outstanding capital stock, for each Subsidiary as of the
date of this Agreement is accurately described on Schedule 5.01.
Section V.2. Corporate Power; Authorization. Each of the
Credit Parties has the corporate power and authority to make, deliver and
perform the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of such Credit Documents. No consent or authorization of, or
filing with, any Person (including, without limitation, any governmental
authority), is required in connection with the execution, delivery or
performance by any Credit Party, or the validity or enforceability against
any Credit Party, of the Credit Documents, other than such consents,
authorizations or filings which have been made or obtained.
Section V.3. Possession of Franchises, Licenses, Etc. Except
as set forth on Schedule 5.03 or as otherwise would not have a Material
Adverse Effect, (a) each of the Credit Parties possesses all franchises,
certificates, licenses, permits and other authorizations from governmental
political subdivisions or regulatory authorities that are necessary in any
material respect for the ownership, maintenance and operation of its
properties and assets, and (b) no Credit Party is in violation of any thereof
in any material respect.
Section V.4. Enforceable Obligations. This Agreement has been
duly executed and delivered, and each other Credit Document will be duly
executed and delivered, by the respective Credit Parties, and this Agreement
constitutes, and each other Credit Document when executed and delivered will
constitute, legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity.
Section V.5. No Legal Bar. The execution, delivery and
performance by the Credit Parties of the Credit Documents will not violate
any Requirement of Law or cause a breach or default under any of their
respective material Contractual Obligations.
Section V.6. No Material Litigation. Except as set forth on
Schedule 5.06 or in any notice furnished to the Lenders and the Issuing Bank
pursuant to Section 6.07(e) at or prior to the respective times the
representations and warranties set forth in this Section 5.06 are made or
deemed to be made hereunder, no litigation, investigations or proceedings of
or before any courts, tribunals, arbitrators or governmental authorities are
pending or, to the knowledge of Borrower, threatened by or against any of the
Consolidated Companies, or against any of their respective properties or
revenues, which, if adversely determined would reasonably be expected to have
a Material Adverse Effect.
Section V.7. Investment Company Act, Etc. None of the Credit
Parties is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). None of the Credit Parties is
subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed, guarantee such
indebtedness, or pledge its assets to secure such indebtedness, as
contemplated hereby or by any other Credit Document.
Section V.8. Margin Regulations. No part of the proceeds of
any of the Loans will be used for any purpose which violates, or which would
be inconsistent or not in compliance with, the provisions of the applicable
Margin Regulations.
Section V.9. Compliance With Environmental Laws.
(a) The Consolidated Companies have received no notices of
claims or potential liability under, and are in compliance with, all
applicable Environmental Laws, where such claims and liabilities under,
and failures to comply with, such statutes, regulations, rules,
ordinances, laws or licenses, would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated
Companies in amounts in excess of $2,500,000, either individually or in
the aggregate (including any such penalties, fines, claims, or
liabilities relating to the matters set forth on Schedule 5.09(a)),
except as set forth on Schedule 5.09(a) or in any notice furnished to
the Lenders and the Issuing Bank pursuant to Section 6.07(f) at or
prior to the respective times the representations and warranties set
forth in this Section 5.09(a) are made or deemed to be made hereunder.
(b) Except as set forth on Schedule 5.09(b) or in any notice
furnished to the Lenders and the Issuing Bank pursuant to Section
6.07(f) at or prior to the respective times the representations and
warranties set forth in this Section 5.09(b) are made or deemed to be
made hereunder, none of the Consolidated Companies has received any
notice of violation, or notice of any action, either judicial or
administrative, from any governmental authority (whether United States
or foreign) relating to the actual or alleged violation of any
Environmental Law, including, without limitation, any notice of any
actual or alleged spill, leak, or other release of any Hazardous
Substance, waste or hazardous waste by any Consolidated Company or its
employees or agents, or as to the existence of any contamination on any
properties owned by any Consolidated Company, where any such violation,
spill, leak, release or contamination would reasonably be expected to
result in penalties, fines, claims or other liabilities to the
Consolidated Companies in amounts in excess of $2,500,000, either
individually or in the aggregate.
(c) Except as set forth on Schedule 5.09(c), the Consolidated
Companies have obtained all necessary governmental permits, licenses
and approvals which are material to the operations conducted on their
respective properties, including without limitation, all required
material permits, licenses and approvals for (i) the emission of air
pollutants or contaminants, (ii) the treatment or pretreatment and
discharge of waste water or storm water, (iii) the treatment, storage,
disposal or generation of hazardous wastes, (iv) the withdrawal and
usage of ground water or surface water, and (v) the disposal of solid
wastes.
Section V.10. Insurance. The Consolidated Companies currently
maintain insurance with respect to their respective properties and
businesses, with financially sound and reputable insurers, having coverages
against losses or damages of the kinds customarily insured against by
reputable companies in the same or similar businesses, such insurance being
in amounts no less than those amounts which are customary for such companies
under similar circumstances. The Consolidated Companies have paid all
material amounts of insurance premiums now due and owing with respect to
such insurance policies and coverages, and such policies and coverages are in
full force and effect.
Section V.11. No Default. Except as set forth on Schedule 5.11,
none of the Consolidated Companies is in default under or with respect to any
Contractual Obligation in any respect which default or defaults would be
reasonably expected in the aggregate to have a Materially Adverse Effect.
Section V.12. No Burdensome Restrictions. Except as set forth
on Schedule 5.12 or in any notice furnished to the Lenders and the Issuing
Bank pursuant to Section 6.07(k) at or prior to the respective times the
representations and warranties set forth in this Section 5.12 are made or
deemed to be made hereunder, none of the Consolidated Companies is a party to
or bound by any Contractual Obligation or Requirement of Law which has had or
would reasonably be expected to have a Materially Adverse Effect.
Section V.13. Taxes. Except as set forth on Schedule 5.13, each
of the Consolidated Companies have filed or caused to be filed all
declarations, reports and tax returns which are required to have been filed,
and has paid all taxes, custom duties, levies, charges and similar
contributions ("taxes" in this Section 5.13) shown to be due and payable on
said returns or on any assessments made against it or its properties, and all
other taxes, fees or other charges imposed on it or any of its properties by
any governmental authority (other than those the amount or validity of which
is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided in
its books); and no tax liens have been filed and, to the knowledge of
Borrower, no claims are being asserted with respect to any such taxes, fees
or other charges.
Section V.14. Subsidiaries. Except as disclosed on Schedule
5.01, on the date of this Agreement, Borrower has no Subsidiaries and neither
Borrower nor any Subsidiary is a joint venture partner or general partner in
any partnership. Except as disclosed on Schedule 5.14 or in any notice
furnished to the Lenders and the Issuing Bank pursuant to Section 6.07(l) at
or prior to the respective times the representations and warranties set forth
in this Section 5.14 are made or deemed to be made hereunder, Borrower has no
Material Subsidiaries.
Section V.15. Financial Statements. Borrower has furnished to
the Agent, the Co-Agent, the Issuing Bank and the Lenders:
(a) Audited Reports. The audited consolidated balance sheet as
of May 31, 1997 of the Consolidated Companies and the related
consolidated statements of income, shareholders' equity and cash flows
for the Fiscal Years then ended, including in each case the related
schedules and notes, setting forth in each case in comparative form the
figures for the previous Fiscal Year of the Consolidated Companies.
The foregoing financial statements fairly present in all material
respects the consolidated financial condition of the Consolidated
Companies as at the dates thereof and results of operations for such
periods in conformity with GAAP consistently applied;
(b) No Material Adverse Change. Since the date of the
preparation of the financial statements set forth above, there have
been no changes with respect to the Consolidated Companies which has
had or would reasonably be expected to have a Materially Adverse
Effect.
Section V.16. ERISA. Except as disclosed on Schedule 5.16 or in
any notice furnished to the Lenders and the Issuing Bank pursuant to Section
6.07(g) at or prior to the respective times the representations and
warranties set forth in this Section 5.16 are made or deemed to be made
hereunder:
(1) Identification of Plans. None of the Consolidated
Companies nor any of their respective ERISA Affiliates maintains or
contributes to, or has during the past seven years maintained or contributed
to, any Plan that is subject to Title IV of ERISA;
(2) Compliance. Each Plan maintained by the Consolidated
Companies have at all times been maintained, by their terms and in operation,
in compliance with all applicable laws, and the Consolidated Companies are
subject to no tax or penalty with respect to any Plan of such Consolidated
Company or any ERISA Affiliate thereof, including without limitation, any tax
or penalty under Title I or Title IV of ERISA or under Chapter 43 of the Tax
Code, or any tax or penalty resulting from a loss of deduction under Sections
162, 404, or 419 of the Tax Code, where the failure to comply with such laws,
and such taxes and penalties, together with all other liabilities referred to
in this Section 5.16 (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans of
such Consolidated Companies or any of their ERISA Affiliates, including
without limitation, any liabilities arising from Titles I or IV of ERISA,
other than obligations to fund benefits under an ongoing Plan and to pay
current contributions, expenses and premiums with respect to such Plans,
where such liabilities, together with all other liabilities referred to in
this Section 6.15 (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect to
any Plan which is subject to Title IV of ERISA, each of their respective
ERISA Affiliates, have made full and timely payment of all amounts (A)
required to be contributed under the terms of each Plan and applicable law,
and (B) required to be paid as expenses (including PBGC or other premiums) of
each Plan, where the failure to pay such amounts (when taken as a whole,
including any penalties attributable to such amounts) would have a Materially
Adverse Effect. No Plan subject to Title IV of ERISA (other than a
Multiemployer Plan) has an "amount of unfunded benefit liabilities" (as
defined in Section 4001(a)(18) of ERISA), determined as if such Plan
terminated on any date on which this representation and warranty is deemed
made, in any amount which, together with all other liabilities referred to in
this Section 5.16 (taken as a whole), would have a Materially Adverse Effect
if such amount were then due and payable. None of the Consolidated Companies
would be subject to withdrawal liability with respect to any Multiemployer
Plan, determined as if the event resulting in such withdrawal liability
occurred on any date on which this representation is made or deemed to be
made based on the most recent actuarial valuation data made available to
employers participating in the Multiemployer Plan, in any amount which,
together with all other liabilities referred to in this Section 5.16 (taken
as a whole), would have a Materially Adverse Effect if such amounts were then
due and payable. The Consolidated Companies are subject to no liabilities
with respect to post-retirement medical benefits in any amounts which,
together with all other liabilities referred to in this Section 5.16 (taken
as a whole), would have a Materially Adverse Effect if such amounts were then
due and payable.
Section V.17. Patents, Trademarks, Licenses, Etc. Except as
set forth on Schedule 5.17, (i) the Consolidated Companies have obtained and
hold in full force and effect all material patents, trademarks, service
marks, trade names, copyrights, licenses and other such rights, free from
material burdensome restrictions, which are necessary for the operation of
their respective businesses as presently conducted, and (ii) to the best of
Borrower's knowledge, no product, process, method, service or other item
presently sold by or employed by any Consolidated Company in connection with
such business infringes any patents, trademark, service xxxx, trade name,
copyright, license or other right owned by any other person and there is not
presently pending, or to the knowledge of Borrower, threatened, any claim or
litigation against or affecting any Consolidated Company contesting such
Person's right to sell or use any such product, process, method, substance or
other item where the result of such failure to obtain and hold such benefits
or such infringement would have a Materially Adverse Effect.
Section V.18. Ownership of Property. Except as set forth on
Schedule 5.18, each Consolidated Company has good and marketable fee simple
title to or a valid leasehold interest in all of its real property and good
title to, or a valid leasehold interest in, all of its other property, as
such properties are reflected in the financial statements referred to in
Section 5.15(a), other than properties disposed of in the ordinary course of
business since such date or as otherwise permitted by the terms of this
Agreement, subject to no Lien or title defect of any kind, except Permitted
Liens. The Consolidated Companies enjoy peaceful and undisturbed possession
under all of their respective material leases.
Section V.19. Indebtedness. As of the Closing Date, except for
the Indebtedness set forth on Schedule 7.01, none of the Consolidated
Companies is an obligor in respect of any Indebtedness for borrowed money or
any commitment to create or incur any Indebtedness for borrowed money.
Section V.20. Financial Condition. On the Closing Date,
including without limitation, the use of the proceeds of the Loans as
provided in Section 2.01, (i) the assets of each Credit Party at fair
valuation and based on their present fair saleable value (including, without
limitation, the fair and realistic value of any contribution or subrogation
rights in respect of any Guaranty Agreement given by such Credit Party) will
exceed such Credit Party's debts, including contingent liabilities (as such
liabilities may be limited under the express terms of any Guaranty Agreement
of such Credit Party), (ii) the remaining capital of such Credit Party will
not be unreasonably small to conduct the Credit Party's business, and (iii)
such Credit Party will not have incurred debts, or have intended to incur
debts, beyond the Credit Party's ability to pay such debts as they mature.
For purposes of this Section 5.20, "debt" means any liability on a claim, and
"claim" means (a) the right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, or (b) 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, disputed,
undisputed, secured or unsecured.
Section V.21. Labor Matters. Except as set forth in Schedule
5.21 or in any notice furnished to the Lenders and the Issuing Bank pursuant
to Section 6.07(k) at or prior to the respective times the representations
and warranties set forth in this Section 5.21 are made or deemed to be made
hereunder, the Consolidated Companies have experienced no strikes, labor
disputes, slow downs or work stoppages due to labor disagreements which have
had, or would reasonably be expected to have, a Materially Adverse Effect,
and, to the best knowledge of Borrower, there are no such strikes, disputes,
slow downs or work stoppages threatened against any Consolidated Company.
The hours worked and payment made to employees of the Consolidated Companies
have not been in violation in any material respect of the Fair Labor
Standards Act or any other applicable law dealing with such matters. All
payments due from the Consolidated Companies, or for which any claim may be
made against the Consolidated Companies, on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies where the failure to
pay or accrue such liabilities would reasonably be expected to have a
Materially Adverse Effect.
Section V.22. Payment or Dividend Restrictions. Except as
described on Schedule 5.22, none of the Consolidated Companies is party to or
subject to any agreement or understanding restricting or limiting the payment
of any dividends or other distributions by any such Consolidated Company.
Section V.23. Sharing Agreements. Each of the Sharing
Agreements is in full force and effect and no material default exists
thereunder.
Section V.24. Disclosure. No representation or warranty
contained in this Agreement (including the Schedules attached hereto) or in
any other document furnished from time to time pursuant to the terms of this
Agreement, contains or will contain any untrue statement of a material fact
or omits or will omit to state any material fact necessary to make the
statements herein or therein not misleading in any material respect as of the
date made or deemed to be made. Except as may be set forth herein (including
the Schedules attached hereto), there is no fact known to Borrower which has
had, or is reasonably expected to have, a Materially Adverse Effect.
Section V.25. Year 2000 Compliant. Borrower and its
Subsidiaries shall be Year 2000 Compliant by December 31, 1999,
except where a failure to be Year 2000 Compliant will not have a Materially
Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid, Borrower will:
Section VI.1. Corporate Existence, Etc. Preserve and maintain,
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, its material rights, franchises, and licenses, and its
material patents and copyrights (for the scheduled duration thereof),
trademarks, trade names, and service marks, necessary or desirable in the
normal conduct of its business, and its qualification to do business as a
foreign corporation in all jurisdictions where it conducts business or other
activities making such qualification necessary, where the failure to be so
qualified would reasonably be expected to have a Materially Adverse Effect.
Section VI.2. Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply with all Requirements of Law (including,
without limitation, the Environmental Laws subject to the exception set forth
in Section 5.09 where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve
amounts in excess of $2,500,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected
to have a Materially Adverse Effect.
Section VI.3. Payment of Taxes and Claims, Etc. Pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with respect thereto.
Section VI.4. Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
Section VI.5. Visitation, Inspection, Etc. Permit, and cause
each of its Subsidiaries to permit, any representative of the Agent, the
Co-Agent, the Issuing Bank or any Lender to visit and inspect any of its
property, to examine its books and records and to make copies and take
extracts therefrom, and to discuss its affairs, finances and accounts with
its officers, all at such reasonable times and as often as the Agent, the
Co-Agent, the Issuing Bank or such Lender may reasonably request.
Section VI.6. Insurance; Maintenance of Properties.
(a) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against
loss or damage of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance to be of
such types and in such amounts as is customary for such companies under
similar circumstances; provided, however, that in any event Borrower
shall use its best efforts to maintain, or cause to be maintained,
insurance in amounts and with coverages not materially less favorable
to any Consolidated Company as in effect on the date of this Agreement.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Borrower may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section VI.7. Reporting Covenants. Furnish to each Lender and
the Issuing Bank:
(a) Annual Financial Statements. As soon as available and in
any event within 90 days after each Fiscal Year End of Borrower,
balance sheets of the Consolidated Companies as at the end of such
year, presented on a consolidated basis, and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such Fiscal Year, presented on a consolidated basis,
setting forth in each case in comparative form the figures for the
previous Fiscal Year, all in reasonable detail and accompanied by a
report thereon of Ernst & Young, L.L.P. or other independent public
accountants of comparable recognized national standing, which such
report shall be unqualified as to going concern and scope of audit and
shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such Fiscal
Year on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such Fiscal
Year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and
in any event within 45 days after the end of each fiscal quarter of
Borrower (other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of Borrower's Fiscal Year ended at the end
of such quarter, presented on a consolidated basis setting forth in
each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Borrower's previous Fiscal Year, all
in reasonable detail and certified by the chief financial officer or
principal accounting officer of Borrower that such financial
statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal
quarter on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
quarter and such portion of Borrower's Fiscal Year, in accordance with
GAAP consistently applied (subject to normal year-end audit adjustments
and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (a) and (b)
above, a certificate of the treasurer or chief financial officer of
Borrower (i) to the effect that, based upon a review of the activities
of the Consolidated Companies and such financial statements during the
period covered thereby, there exists no Event of Default and no Default
under this Agreement, or if there exists an Event of Default or a
Default hereunder, specifying the nature thereof and the proposed
response thereto, and (ii) demonstrating in reasonable detail
compliance as at the end of such Fiscal Year or such fiscal quarter
with Section 6.08 and Sections 7.01 through 7.05;
(d) Notice of Default. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of
Default or a Default, a certificate of the chief financial officer or
principal accounting officer of Borrower specifying the nature thereof
and the proposed response thereto;
(e) Litigation. Promptly after (i) the occurrence thereof,
notice of the institution of or any material adverse development in any
material action, suit or proceeding or any governmental investigation
or any arbitration, before any court or arbitrator or any governmental
or administrative body, agency or official, against any Consolidated
Company, or any material property of any thereof seeking money damages
in excess of $2,500,000 or which, if adversely determined, would
otherwise reasonably be expected to have a Materially Adverse Effect,
or (ii) actual knowledge thereof, notice of the threat of any such
action, suit, proceeding, investigation or arbitration;
(f) Environmental Notices. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action,
claim or request for information, either judicial or administrative,
from any governmental authority relating to any actual or alleged
claim, notice of potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill, leak, disposal or
other release of any waste, petroleum product, or hazardous waste or
Hazardous Substance by any Consolidated Company which could result in
penalties, fines, claims or other liabilities to any Consolidated
Company in amounts in excess of $2,500,000;
(g) ERISA. (i) Promptly after the occurrence thereof with
respect to any Plan of any Consolidated Company or any ERISA Affiliate
thereof, or any trust established thereunder, notice of (A) a
"reportable event" described in Section 4043 of ERISA and the
regulations issued from time to time thereunder (other than a
"reportable event" not subject to the provisions for 30-day notice to
the PBGC under such regulations), or (B) any other event which could
subject any Consolidated Company to any tax, penalty or liability
under Title I or Title IV of ERISA or Chapter 43 of the Tax Code, or
any tax or penalty resulting from a loss of deduction under Sections
162, 404 or 419 of the Tax Code, where any such taxes, penalties or
liabilities exceed or could exceed $2,500,000 in the aggregate;
(ii) Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative payee, any
notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or
412 of the Tax Code with respect to any Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental authority to terminate a
Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon the
filing thereof with the Internal Revenue Service ("IRS") or the
Department of Labor ("DOL"), a copy of IRS Form 5500 or annual report
for each Plan of any Consolidated Company or ERISA Affiliate thereof
which is subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and complete
copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed
with the IRS, PBGC or DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a current statement of
withdrawal liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Compnay becoming
aware thereof, notice of the filing of any federal statutory Lien, tax
or other state or local government Lien or any other Lien affecting
their respective properties, other than Permitted Liens;
(i) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices
sent or made available generally by Borrower to its public security
holders, of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any of them with any
securities exchange, and of all press releases and other statements
made available generally to the public containing material developments
in the business or financial condition of Borrower and the other
Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt thereof,
copies of all financial statements of, and all reports submitted by,
independent public accountants to Borrower in connection with each
annual, interim, or special audit of Borrower's financial statements,
including without limitation, the comment letter submitted by such
accountants to management in connection with their annual audit;
(k) Burdensome Restrictions, Etc. Promptly upon the existence
or occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 5.12,
(ii) failure of any Consolidated Company to hold in full force and
effect those material trademarks, service marks, patents, trade names,
copyrights, licenses and similar rights necessary in the normal conduct
of its business, and (iii) any strike, labor dispute, slow down or work
stoppage as described in Section 5.21;
(l) New Material Subsidiaries. Within 30 days after the
formation or acquisition of any Material Subsidiary, or any other event
resulting in the creation of a new Material Subsidiary, notice of the
formation or acquisition of such Material Subsidiary or such
occurrence, including a description of the assets of such entity, the
activities in which it will be engaged, and such other information as
the Agent, the Co-Agent, the Issuing Bank and any of the Lenders may
request;
(m) Intercompany Asset Transfers. Promptly upon the occurrence
thereof, notice of the transfer of any assets from any Credit Party to
any other Consolidated Company that is not a Credit Party in any
transaction or series of related transactions, where either the book
value or the fair market value of such assets is greater than
$2,500,000 (excluding sales or other transfers of assets in the
ordinary course of business); and
(n) Other Information. With reasonable promptness, such other
information about the Consolidated Companies as the Agent, the
Co-Agent, the Issuing Bank or any Lender may reasonably request from
time to time.
Section VI.8. Financial Covenants.
(a) Fixed Charge Coverage. Maintain a Fixed Charge Coverage
Ratio at all times greater than 3.00:1.00, measured as of the last day
of each fiscal quarter of the Borrower, commencing on the last day of
the fiscal quarter ending on August 31, 1998, for the immediately
preceding four quarters ending on such date.
(b) Leverage Ratio. Maintain a Leverage Ratio at all times of
not more than 3.00:1.0, measured as of the last day of each fiscal
quarter of the Borrower, commencing on the last day of the fiscal
quarter ending on August 31, 1998, for the immediately preceding four
quarters ending on such date.
Section VI.9. Notices Under Certain Other Indebtedness.
Immediately upon its receipt thereof, Borrower shall furnish the Agent a copy
of any notice received by it or any other Consolidated Company from the
holder(s) of Indebtedness referred to in Section 7.01(b), (c), (f), (g) or
(i) (or from any trustee, agent, attorney, or other party acting on behalf of
such holder(s)) in an amount which, in the aggregate, exceeds $2,500,000,
where such notice states or claims (i) the existence or occurrence of any
default or event of default with respect to such Indebtedness under the terms
of any indenture, loan or credit agreement, debenture, note, or other
document evidencing or governing such Indebtedness, or (ii) the existence or
occurrence of any event or condition which requires or permits holder(s) of
any Indebtedness to exercise rights under any Change in Control Provision.
Section VI.10. Additional Credit Parties and Collateral.
Promptly after (i) the formation or acquisition of any Material Subsidiary
not listed on Schedule 5.14, (ii) the transfer of assets to any Consolidated
Company if notice thereof is required to be given pursuant to Section 6.07(m)
and as a result thereof the recipient of such assets becomes a Material
Subsidiary, or (iii) the occurrence of any other event creating a new
Material Subsidiary, Borrower shall cause to be executed and delivered a
Supplement to Subsidiary Guaranty Agreement from each such Material
Subsidiary, together with related corporate authorization documents,
organizational documents, secretary's certificates and opinions, all in form
and substance satisfactory to the Agent and the Required Lenders.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid, Borrower will not and will not permit any Subsidiary to:
Section VII.1. Indebtedness. Create, incur, assume, guarantee,
suffer to exist or otherwise become liable on or with respect to, directly or
indirectly, any Indebtedness, other than:
(a) Indebtedness of the Borrower under this Agreement and of
the Material Subsidiary of Borrower pursuant to the Guaranty Agreement;
(b) Indebtedness outstanding or incurred on the Closing Date
and described on Schedule 7.01
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 7.02(b) in an aggregate principal amount at any
time outstanding not to exceed $5,000,000;
(d) unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or
similar instruments) incurred in the ordinary course of business and
either (i) not more than 30 days past due, or (ii) being disputed in
good faith by appropriate proceedings with reserves for such disputed
liability maintained in conformity with GAAP;
(e) Indebtedness of Borrower or any of its Subsidiaries under
Interest Rate Contracts;
(f) Subordinated Debt of the Borrower (but not Subsidiaries of
the Borrower) expressly approved in writing by the Lenders;
(g) Guarantees of advances to officers and employees in the
ordinary course of business, or Guarantees otherwise disclosed to and
approved in writing by the Agent and the Required Lenders;
(h) Endorsements of instruments for deposit or collection in
the ordinary course of business;
(i) Unsecured Indebtedness of the Borrower pursuant to short
term lines of credit in an aggregate principal amount at any one time
outstanding not to exceed $5,000,000;
Section 7.05;
(k) Up to $25,000,000 of additional Indebtedness at any time
outstanding for the purpose of issuing variable or fixed rate demand
notes or bonds for the benefit of Borrower or any of its Subsidiaries
to finance one or more advanced culinary center.
Section VII.2. Liens. Create, incur, assume or suffer to exist
any Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the Closing Date and disclosed on
Schedule 7.02;
(b) any Lien on any property and proceeds thereof securing
Indebtedness permitted by Section 7.01(c) or 7.01(k) above incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring, developing, constructing, installing or equipping such
property and any refinancing thereof, provided that such Lien does not
extend to any other property (other than the proceeds of such property);
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law and
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(f) zoning, easements and restrictions on the use of real
property which do not materially impair the use of such property; and
(g) rights in property reserved or vested in any governmental
authority which do not materially impair the use of such property.
Section VII.3. Mergers, Sales, Acquisitions.
(a) Merge or consolidate with any other Person, except that
this Section 7.03 shall not apply to:
(i) any merger or consolidation of Borrower with any
other Person provided that the Borrower is the surviving
corporation after such merger or consolidation,
(ii) any merger or consolidation of any of the Borrower's
Subsidiaries with any other Person provided that any such
Subsidiary shall be the surviving corporation after such merger
or consolidation, or
(iii) any merger between Subsidiaries of Borrower; or
(b) sell, lease, transfer or otherwise dispose of its
accounts, property or other assets (including capital stock of any
Subsidiary of Borrower), except that this Section 7.03 shall not apply
to:
(i) any sale, lease, transfer or other disposition of
assets of any Subsidiary of the Borrower to the Borrower or any
of its Material Subsidiaries,
(ii) sales of inventory in the ordinary course of business
of the Borrower and its Subsidiaries,
(iii) disposition of equipment or inventory determined in
good faith to be obsolete or unusable by the Borrower or its
Subsidiaries, or
(iv) any other sale of the Borrower's assets during the
term of this Agreement; provided that, such assets (x) have an
aggregate book value, which when aggregated with all other such
sales since the Closing Date, do not exceed seven and one-half
percent (7.5%) of the aggregate book value of all of the
Borrower's assets on the date of such transfer, and (y) when
aggregated with all other assets of Borrower sold during such
Fiscal Year, did not produce or otherwise account for more than
ten percent (10%) of Consolidated EBITDA during the preceding
Fiscal Year (or in the case of the first year of this Agreement,
any of the four preceding fiscal quarters of the Borrower);
(c) purchase, lease or otherwise acquire for cash, stock or
other consideration, the stock of any Person or all or any substantial
portion of the assets of any Person, unless such stock, assets or other
considerations have fair market value in any one transaction less than
$10,000,000, or less than $20,000,000 in the aggregate per Fiscal Year,
and the Borrower provides to the Lenders the following information:
(i) a description in reasonable detail of the assets
proposed to be purchased in the transaction; and
(ii) a certificate by the Chief Financial Officer of the
Borrower stating that (1) after giving effect any such
transaction in this Section 7.03(c) the covenants described in
Section 6.08 have been met and (2) that no Default or Event of
Default will exist as a result of the transaction;
provided, however, that no transaction pursuant to clause (a), clause (b)(i),
clause (b)(iv) or clause (c) above shall be permitted if any Default or Event
of Default exists at the time of such transaction or would exist as a result
of such transaction.
Section VII.4. Investments, Loans, Etc. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries,
other than:
(a) Investments in (i) Subsidiaries of Borrower existing as of
the Closing Date, (ii) Material Subsidiaries with respect to which the
Borrower has complied with Section 6.10, and (iii) Subsidiaries created
or acquired thereafter in connection with any acquisition permitted by
Section 7.03(c) to the extent permitted by Section 7.03 in any Fiscal
Year.
(b) Investments in the stock or other assets of any other
Person that is engaged in a business permitted by Section 7.08 hereof
that, as a result of such Investment, becomes a wholly-owned Subsidiary
of Borrower (other than Hostile Acquisitions); provided, however, that
the aggregate amount of Investments made pursuant to this subsection
(b) shall not exceed, (x) in the case of the acquisition of the stock
or assets of any Person or related Persons, an aggregate amount of
$1,500,000, and (y) an aggregate amount of $5,000,000 during any Fiscal
Year of the Borrower;
(c) marketable direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United States or any
agency thereof, in each case supported by the full faith and credit of
the United States and maturing within one year from the date of
creation thereof;
(d) Investments received in settlement of Indebtedness created
in the ordinary course of business;
(e) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state
or any public instrumentality thereof, the interest from which is
exempt from Federal income taxes, maturing within one year from the
date of acquisition thereof and either having as at any date of
determination the one of the two highest ratings obtainable from either
Standard & Poor's or Moody's;
(f) unsecured commercial paper, the interest from which is
exempt from Federal income taxes, maturing no more than 270 days from
the date of creation and having as at any date of determination either
the highest rating obtainable from either Standard & Poor's or Moody's;
(g) commercial paper issued by corporations, each of which has
a consolidated net worth of not less than $500,000,000, and conducts a
substantial portion of its business in the United States of America,
maturing no more than 365 days from the date of acquisition thereof and
having as at any date of determination the highest rating obtainable
from either Standard & Poor's or Moody's; and
(h) money market or similar depository accounts, certificates
of deposit or bankers acceptances, in each case redeemable upon demand
or maturing within one year from the date of acquisition thereof,
issued by commercial banks incorporated under the laws of the United
States of America or any state thereof or the District of Columbia,
provided (x) each such bank has at any date of determination combined
capital and surplus of not less than $1,000,000,000 and a rating of its
long-term debt of at least A by Standard & Poor's or at least A by
Moody's or a long-term deposit rating of at least A issued by Standard
& Poor's or at least A issued by Moody's, (y) the aggregate amount of
all such certificates of deposit issued by such bank are fully insured
at all times by the Federal Deposit Insurance Company;
provided however, notwithstanding the foregoing, the Borrower and any
Subsidiary may continue to own any Investment which (A) complied with the
provisions of clauses (f), (g) or (h) at the time such Investment was made
and (B) at any date of determination does not so comply solely because (x)
such Investment no longer has the rating required from Standard & Poor's or
Moody's or (y) the bank having the money market or depository account or
issuing the certificate of deposit or bankers acceptance ceases to have the
required level of capital and surplus or to have a rating of its long-term
debt of at least A by Standard & Poor's or at least A by Moody's or to have a
long-term deposit rating of at least A by Standard & Poor's or at least A by
Moody's, if, and for so long as, in the good faith judgment of the relevant
Executive Officer, no loss of the principal amount of such Investment would
occur as the result of the Borrower or such Subsidiary continuing to own such
Investment to maturity. Nothing contained in the foregoing proviso shall be
deemed to be applicable to any new or renewed Investment at the time such
Investment is made or renewed.
Section VII.5. Letters of Credit. Create, incur, issue, assume,
guarantee, suffer to exist or otherwise become liable on or with respect to,
directly or indirectly, letters of credit other than Letters of Credit issued
pursuant to this Agreement and letters of credit issued to provide credit or
liquidity support, or both in connection with Indebtedness permitted by
Section 7.01(k), where the maximum amount available to be drawn under all
such letters of credit would exceed, at any one time outstanding, $20,000,000
in the aggregate.
Section VII.6. Sale and Leaseback Transactions. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any
Consolidated Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
Section VII.7. Transactions with Affiliates.
(a) Enter into any transaction or series of related
transactions which in the aggregate would be material, whether or not
in the ordinary course of business, with any Affiliate of any
Consolidated Company (but excluding any Affiliate which is also a
wholly-owned Subsidiary of Borrower and any compensation arrangement
with an officer or director of the Borrower or any other Consolidated
Company entered into in the ordinary course of business), other than on
terms and conditions substantially as favorable to such Consolidated
Company as would be obtained by such Consolidated Company at the time
in a comparable arm's-length transaction with a Person other than an
Affiliate.
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in
the manufacturing or production operations of any Consolidated Company,
or convey or transfer to any other Consolidated Company any other
assets (excluding conveyances or transfers in the ordinary course of
business) if at the time of such conveyance or transfer any Default or
Event of Default exists or would exist as a result of such conveyance
or transfer.
Section VII.8. Changes in Business. Enter into or engage in any
business which is substantially different from the business engaged in by the
Borrower and its Subsidiaries on the Closing Date.
Section VII.9. ERISA. Take or fail to take any action with
respect to any Plan of any Consolidated Company or, with respect to its ERISA
Affiliates, any Plans which are subject to Title IV of ERISA or to
continuation health care requirements for group health plans under the Tax
Code, including without limitation (i) establishing any such Plan, (ii)
amending any such Plan (except where required to comply with applicable law),
(iii) terminating or withdrawing from any such Plan, or (iv) incurring an
amount of unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA, or any withdrawal liability under Title IV of ERISA with respect to
any such Plan, which together with any other action or omission referred to
in this Section 7.09 (taken as a whole) would have a Materially Adverse
Effect, without first obtaining the written approval of the Required Lenders.
Section VII.10. Limitation on Payment Restrictions Affecting
Consolidated Companies. Create or otherwise cause or suffer to exist or
become effective, any consensual encumbrance or restriction on the ability of
any Consolidated Company to (i) pay dividends or make any other distributions
on any stock of a Subsidiary of the Borrower, or (ii) pay any intercompany
debt owed to Borrower or any other Consolidated Company, or (iii) transfer
any of its property or assets to Borrower or any other Consolidated Company,
except any consensual encumbrance or restriction existing as of the Closing
Date.
Section VII.11. Actions Under Certain Documents. Without the
prior written consent of the Required Lenders (i) modify, amend, cancel or
rescind any agreements or documents evidencing or governing Subordinated Debt
or intercompany debt, (ii) make any payment with respect to Subordinated
Debt, except that current interest accrued on such Subordinated Debt as of
the date of this Agreement and all interest subsequently accruing thereon
(whether or not paid currently) may be paid unless a Default or Event of
Default has occurred and is continuing, (iii) voluntarily prepay any portion
of intercompany debt, or (iv) amend or modify any of the Sharing Agreements
to materially increase the obligations or liabilities of the Consolidated
Companies thereunder.
Section VII.12. Additional Negative Pledges. Create or
otherwise cause or suffer to exist or become effective, directly or
indirectly, any prohibition or restriction on the creation or existence of
any Lien upon any asset of any Consolidated Company, other than pursuant to
(i) Section 7.02, (ii) the terms of any agreement, instrument or other
document pursuant to which any Indebtedness permitted by Sections 7.01(k) or
7.02(b) is incurred by any Consolidated Company, so long as such prohibition
or restriction (in the case of Indebtedness permitted pursuant to
Section 7.02(b)) applies only to the property or asset being financed by such
Indebtedness, and (iii) any requirement of applicable law or any regulatory
authority having jurisdiction over any of the Consolidated Companies.
Section VII.13. Changes in Fiscal Year. Change the calculation
of the Fiscal Year of the Borrower.
Section VII.14. Issuance of Stock by Subsidiaries. Permit any
Subsidiary (either directly or indirectly by the issuance of rights or
options for, or securities convertible into such shares) to issue, sell or
dispose of any shares of its stock of any class (other than directors'
qualifying shares, if any) except to the Borrower or another Subsidiary.
Section VII.15. Dividends. In any Fiscal Year the Borrower
shall not pay or declare dividends in an aggregate amount in excess of twenty
percent (20%) of its Consolidated Net Income.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
Section VIII.1. Payments. Borrower shall fail to make
promptly when due (including, without limitation, by mandatory prepayment)
any principal payment with respect to the Loans, or Borrower shall fail to
make any payment of interest, fee or other amount payable hereunder within
five (5) days of its due date;
Section VIII.2. Covenants Without Notice. Borrower shall fail
to observe or perform any covenant or agreement contained in Sections 6.01,
6.05, 6.07, 6.08, 6.09 or Article VII;
Section VIII.3. Other Covenants. Borrower shall fail to
observe or perform any covenant or agreement contained in this Agreement,
other than those referred to in Sections 8.01 and 8.02, and, if capable of
being remedied, such failure shall remain unremedied for 30 days after the
earlier of (i) Borrower's obtaining knowledge thereof, or (ii) written notice
thereof shall have been given to Borrower by Agent, the Co-Agent, the Issuing
Bank or any Lender;
Section VIII.4. Representations. Any representation or
warranty made or deemed to be made by Borrower or any other Credit Party or
by any of its officers under this Agreement or any other Credit Document
(including the Schedules attached thereto), or any certificate or other
document submitted to the Agent, the Co-Agent, the Issuing Bank or the
Lenders by any such Person pursuant to the terms of this Agreement or any
other Credit Document, shall be incorrect in any material respect when made
or deemed to be made or submitted;
Section VIII.5. Non-Payments of Other Indebtedness. Any
Consolidated Company shall fail to make when due (whether at stated maturity,
by acceleration, on demand or otherwise, and after giving effect to any
applicable grace period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding $2,500,000 individually
or in the aggregate;
Section VIII.6. Defaults Under Other Agreements; Change In
Control Provisions. (a) Any Consolidated Company shall fail to observe or
perform any covenants or agreements (whether or not waived) contained in any
agreements or instruments relating to any of its Indebtedness exceeding
$500,000 individually or in the aggregate, or any other event shall occur if
the effect of such failure or other event is to accelerate, or with notice or
passage of time or both, to permit the holder of such Indebtedness or any
other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity; or (b) any event or condition shall occur or exist which, pursuant
to the terms of any Change in Control Provision, requires or permits the
holder(s) of the Indebtedness subject to such Change in Control Provision to
require that such Indebtedness be redeemed, repurchased, defeased, prepaid or
repaid, in whole or in part, or the maturity of such Indebtedness to be
accelerated;
Section VIII.7. Bankruptcy. The Borrower or any Material
Subsidiary shall commence a voluntary case concerning itself under the
Bankruptcy Code or applicable foreign bankruptcy laws; or an involuntary case
for bankruptcy is commenced against Borrower or any Material Subsidiary and
the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) or similar official under applicable foreign bankruptcy laws
is appointed for, or takes charge of, all or any substantial part of the
property of the Borrower or any Material Subsidiary; or the Borrower or any
Material Subsidiary commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction,
whether now or hereafter in effect, relating to the Borrower or any Material
Subsidiary or there is commenced against the Borrower or any Material
Subsidiary any such proceeding which remains undismissed for a period of 60
days; or the Borrower or any Material Subsidiary is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any Material Subsidiary suffers any
appointment of any custodian or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days; or
the Borrower or any Material Subsidiary makes a general assignment for the
benefit of creditors; or the Borrower or any Material Subsidiary shall fail
to pay, or shall state that it is unable to pay, or shall be unable to pay,
its debts generally as they become due; or the Borrower or any Material
Subsidiary shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or the Borrower or any Material
Subsidiary shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or any corporate action
is taken by the Borrower or any Material Subsidiary for the purpose of
effecting any of the foregoing;
Section VIII.8. ERISA. A Plan of either a Consolidated Company
or of any of its ERISA Affiliates which is subject to Title IV of ERISA:
(i) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of
such Plan, Section 412 of the Tax Code or Section 302 of
ERISA for any plan year or a waiver of such standard is
sought or granted with respect to such Plan under
applicable law, the terms of such Plan or Section 412 of
the Tax Code or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms
of such Plan; or
(iii) shall require a Consolidated Company to provide security
under applicable law, the terms of such Plan, Section 401
or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver, termination or other
event described in clauses (i) through (iv) above a liability to the PBGC or
a Plan that would have a Materially Adverse Effect;
Section VIII.9. Judgments. Judgments or orders for the payment
of money in excess of $2,500,000 individually or in the aggregate or
otherwise having a Materially Adverse Effect shall be rendered against
Borrower or any other Consolidated Company and such judgment or order shall
continue unsatisfied (in the case of a money judgment) and in effect for a
period of 30 days during which execution shall not be effectively stayed or
deferred (whether by action of a court, by agreement or otherwise);
Section VIII.10. Ownership of Credit Parties. If Borrower shall
at any time fail to own and control the shares of Voting Stock of any
Guarantor which it owned or controlled at the time such Guarantor became a
Credit Party hereunder other than due to sale of the Voting Stock of such
Guarantor permitted pursuant to Section 7.03 hereof;
Section VIII.11. Change in Control of Borrower. (x) With the
exception of Xxxxxxxx prior to the Closing Date, any person or group (within
the meaning of Rule 13d-5 of the Securities and Exchange Commission as in
effect on the date hereof) shall become the owner, beneficially or of record,
of shares representing more than twenty-five percent (25%) of the aggregate
ordinary voting power represented by the issued and outstanding capital stock
of the Borrower, or (y) a change in the board of directors of the Borrower
shall occur such that the individuals who constituted the board of directors
of the Borrower at the beginning of the two-year period immediately preceding
such change (together with any other director whose election by the board of
directors of the Borrower or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least a majority of
the directors then in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the directors then
in office; or
Section VIII.12. Default Under Other Credit Documents; Sharing
Agreements. (x) There shall exist or occur any "Event of Default" as
provided under the terms of any other Credit Document, or any Credit Document
ceases to be in full force and effect or the validity or enforceability
thereof is disaffirmed by or on behalf of Borrower or any other Credit Party,
or at any time it is or becomes unlawful for Borrower or any other Credit
Party to perform or comply with its material obligations under any Credit
Document, or the material obligations of Borrower or any other Credit Party
under any Credit Document are not or cease to be legal, valid and binding on
Borrower or any such Credit Party; or (y) any party to the Sharing Agreements
shall default with respect to its covenants or obligations thereunder where
such default results in a Materially Adverse Effect with respect to the
Credit Parties;
then, and in any such event, and at any time thereafter if any Event of
Default shall then be continuing, the Agent may, and upon the written or
telex request of the Required Lenders, shall, take any or all of the
following actions, without prejudice to the rights of the Agent, the
Co-Agent, the Issuing Bank, any Lender or the holder of any Note to enforce
its claims against Borrower or any other Credit Party: (i) declare all
Commitments terminated, whereupon the Commitments of each Lender shall
terminate immediately and any commitment fee shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest on the Loans, and all other Obligations owing
hereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; provided, that, if an Event of
Default specified in Section 8.07 shall occur, the result which would occur
upon the giving of notice by the Agent to any Credit Party, shall occur
automatically without the giving of any such notice, and (iii) may exercise
any other rights or remedies available under the Credit Documents, at law or
in equity.
ARTICLE IX.
THE AGENT
Section IX.1. Appointment of Agent. The Issuing Bank and each
Lender hereby designates SunTrust as Agent to administer all matters
concerning the Loans and Letters of Credit and to act as herein specified.
The Issuing Bank and each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of a Note shall be deemed irrevocably to
authorize, the Agent to take such actions on its behalf under the provisions
of this Agreement, the other Credit Documents, and all other instruments and
agreements referred to herein or therein, and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through their agents or employees.
Section IX.2. Authorization of Agent with Respect to the
Security Documents. (a) The Issuing Bank and each Lender hereby authorizes
the Agent to enter into each of the Security Documents substantially in the
form attached hereto, and to take all action contemplated thereby. All
rights and remedies under the Security Documents may be exercised by the
Agent for the benefit of the Agent, the Issuing Bank and the Lenders and the
other beneficiaries thereof upon the terms thereof. The Issuing Bank and the
Lenders further agree that the Agent may assign its rights and obligations
under any of the Security Documents to any affiliate of the Agent or to any
trustee, if necessary or appropriate under applicable law, which assignee in
each such case shall (subject to compliance with any requirements of
applicable law governing the assignment of such Security Documents) be
entitled to all the rights of the Agent under and with respect to the
applicable Security Document.
(b) In each circumstance where, under any provision of any
Security Document, the Agent shall have the right to grant or withhold any
consent, exercise any remedy, make any determination or direct any action by
the Agent under such Security Document, the Agent shall act in respect of
such consent, exercise of remedies, determination or action, as the case may
be, with the consent of and at the direction of the Required Lenders;
provided, however, that no such consent of the Required Lenders shall be
required with respect to any consent, determination or other matter that is,
in the Agent's judgment, ministerial or administrative in nature. In each
circumstance where any consent of or direction from the Required Lenders is
required, the Agent shall send to the Issuing Bank and the Lenders a notice
setting forth a description in reasonable detail of the matter as to which
consent or direction is requested and the Agent's proposed course of action
with respect thereto. In the event the Agent shall not have received a
response from any Lender or the Issuing Bank within five (5) Business Days
after such Lender's or the Issuing Bank's receipt of such notice, such Lender
or the Issuing Bank shall be deemed to have agreed to the course of action
proposed by the Agent.
Section IX.3. Nature of Duties of Agent. The Agent shall have
no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. None of the Agent nor any of its
respective officers, directors, employees or agents shall be liable for any
action taken or omitted by it as such hereunder or in connection herewith,
unless caused by its or their gross negligence or willful misconduct. The
duties of the Agent shall be ministerial and administrative in nature; the
Agent shall not have by reason of this Agreement a fiduciary relationship in
respect of any Lender or the Issuing Bank; and nothing in this Agreement,
express or implied, is intended to or shall be so construed as to impose upon
the Agent any obligations in respect of this Agreement or the other Credit
Documents except as expressly set forth herein.
Section IX.4. Lack of Reliance on the Agent.
(a) Independently and without reliance upon the Agent, each
Lender and the Issuing Bank, to the extent each deems appropriate, has
made and shall continue to make (i) its own independent investigation
of the financial condition and affairs of the Credit Parties in
connection with the taking or not taking of any action in connection
herewith, and (ii) its own appraisal of the creditworthiness of the
Credit Parties, and, except as expressly provided in this Agreement,
the Agent shall have no duty or responsibility, either initially or on
a continuing basis, to provide any Lender or the Issuing Bank with any
credit or other information with respect thereto, whether coming into
its possession before the making of the Loans or the issuance of the
Letters of Credit or at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender or the
Issuing Bank for any recitals, statements, information, representations
or warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility, priority or
sufficiency of this Agreement, the Notes, the Guaranty Agreement or any
other documents contemplated hereby or thereby, or the financial
condition of the Credit Parties, or be required to make any inquiry
concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement, the Notes, the Guaranty
Agreement or the other documents contemplated hereby or thereby, or the
financial condition of the Credit Parties, or the existence or possible
existence of any Default or Event of Default.
Section IX.5. Certain Rights of the Agent. If the Agent shall
request instructions from the Required Lenders with respect to any action or
actions (including the failure to act) in connection with this Agreement, the
Agent shall be entitled to refrain from such act or taking such act, unless
and until the Agent shall have received instructions from the Required
Lenders; and the Agent shall not incur liability in any Person by reason of
so refraining. Without limiting the foregoing, no Lender or the Issuing Bank
shall have any right of action whatsoever against the Agent as a result of
the Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
Section IX.6. Reliance by Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other documentary, teletransmission
or telephone message believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person. The Agent may consult with
legal counsel (including counsel for any Credit Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
Section IX.7. Indemnification of Agent. To the extent the Agent
is not reimbursed and indemnified by the Credit Parties, each Lender will
reimburse and indemnify the Agent, ratably according to the respective
amounts of the Loans outstanding under all Commitments (or if no amounts are
outstanding, ratably in accordance with the Commitments), in either case, for
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its
duties hereunder, in any way relating to or arising out of this Agreement or
the other Credit Documents; provided that no Lender or the Issuing Bank shall
be liable to the Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct.
Section IX.8. The Agent in its Individual Capacity. With
respect to its obligation to lend under this Agreement, the Loans made by it
and the Notes issued to it, the Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same
as though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the Agent in
its individual capacity. The Agent may accept deposits from, lend money to,
and generally engage in any kind of banking, trust, financial advisory or
other business with the Consolidated Companies or any affiliate of the
Consolidated Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Consolidated
Companies for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders or the Issuing Bank.
Section IX.9. Holders of Notes. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is
the holder of any Note shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Note or of any Note or Notes issued in
exchange therefor.
Section IX.10. Successor Agent.
(a) The Agent may resign at any time by giving written notice
thereof to the Lenders, the Issuing Bank and Borrower and may be
removed at any time with or without cause by the Required Lenders;
provided, however, the Agent may not resign or be removed until a
successor Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Agent subject to
Borrower's prior written approval. If no successor Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice
of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent subject to Borrower's prior written approval, which
shall be a bank which maintains an office in the United States, or a
commercial bank organized under the laws of the United States of
America or any State thereof, or any Affiliate of such bank, having a
combined capital and surplus of at least $1,000,000,000.
(b) Upon the acceptance of any appointment as the Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under
this Agreement.
ARTICLE X.
MISCELLANEOUS
Section X.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, telecopy or similar teletransmission or writing) and shall be
given to such party at its address or applicable teletransmission number set
forth on the signature pages hereof, or such other address or applicable
teletransmission number as such party may hereafter specify by notice to the
Agent and Borrower. Each such notice, request or other communication shall
be effective (i) if given by telex, when such telex is transmitted to the
telex number specified in this Section and the appropriate answerback is
received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as
aforesaid, (iii) if given by telecopy, when such telecopy is transmitted to
the telecopy number specified in this Section and the appropriate
confirmation is received, or (iv) if given by any other means (including,
without limitation, by air courier), when delivered or received at the
address specified in this Section; provided that notices to the Agent shall
not be effective until received.
Section X.2. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to any
departure by any Credit Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders (and
in the case of any amendment, the applicable Credit Party), and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders and the
Issuing Bank to do any of the following: (i) waive any of the conditions
specified in Section 4.01 or 4.02, (ii) increase the Commitments or
contractual obligations of the Lenders or the Issuing Bank to Borrower under
this Agreement, (iii) reduce the principal of, or interest on, the Notes or
any fees hereunder, (iv) postpone any date fixed for the payment in respect
of principal of, or interest on, the Notes or any fees hereunder, (v) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of the Notes, or the number or identity of Lenders which shall be required
for the Lenders or any of them to take any action hereunder, (vi) agree to
release any Guarantor from its obligations under any Guaranty Agreement,
(vii) modify the definition of "Required Lenders," or (viii) modify this
Section 10.02. Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing and signed by the Agent and the Co-Agent, in
addition to the Lenders and the Issuing Bank required hereinabove to take
such action, affect the rights or duties of the Agent under this Agreement or
under any other Credit Document.
Section X.3. No Waiver; Remedies Cumulative. No failure or
delay on the part of the Agent, the Co-Agent, any Lender, the Issuing Bank or
any holder of a Note in exercising any right or remedy hereunder or under any
other Credit Document, and no course of dealing between any Credit Party and
the Agent, any Lender, the Issuing Bank or the holder of any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right or
remedy hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Agent, the Co-Agent, any Lender, the Issuing Bank or the holder of any Note
would otherwise have. No notice to or demand on any Credit Party not
required hereunder or under any other Credit Document in any case shall
entitle any Credit Party to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of the Agent, the
Co-Agent, the Lenders, the Issuing Bank or the holder of any Note to any
other or further action in any circumstances without notice or demand.
Section X.4. Payment of Expenses, Etc. Borrower shall:
(i) whether or not the transactions hereby contemplated
are consummated, pay all reasonable, out-of-pocket costs and
expenses of the Agent in the administration (both before and
after the execution hereof and including reasonable expenses
actually incurred relating to advice of counsel as to the
rights and duties of the Agent, the Co-Agent, the Issuing Bank
and the Lenders with respect thereto) of, and in connection
with the preparation, execution and delivery of, preservation
of rights under, enforcement of, and, after a Default or Event
of Default, refinancing, renegotiation or restructuring of,
this Agreement and the other Credit Documents and the
documents and instruments referred to therein, and any
amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees actually incurred and
disbursements of counsel for the Agent), and in the case of
enforcement of this Agreement or any Credit Document after an
Event of Default, all such reasonable, out-of-pocket costs and
expenses (including, without limitation, the reasonable fees
actually incurred and reasonable disbursements and changes of
counsel), for any of the Lenders or the Issuing Bank;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b), pay and hold each of
the Lenders and the Issuing Bank harmless from and against any
and all present and future stamp, documentary, and other
similar Taxes with respect to this Agreement, the Notes and
any other Credit Documents, any collateral described therein,
or any payments due thereunder, and save the Issuing Bank and
each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay
such Taxes; and
(iii) indemnify the Agent, the Co-Agent, the Issuing Bank
and each Lender, and their respective officers, directors,
employees, representatives and agents from, and hold each of
them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether
or not any of them is designated a party thereto) (an
"Indemnitee") arising out of or by reason of any
investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans or
any Credit Party's entering into and performing of the
Agreement, the Notes, or the other Credit Documents,
including, without limitation, the reasonable fees actually
incurred and disbursements of counsel incurred in connection
with any such investigation, litigation or other proceeding;
provided, however, Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out
of such Indemnitee's gross negligence or willful misconduct;
(iv) without limiting the indemnities set forth in
subsection (iii) above, indemnify each Indemnitee for any and
all expenses and costs (including without limitation,
remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including
the cost of investigating or defending any claim and whether
or not such claim is ultimately defeated, and whether such
claim arose before, during or after any Credit Party's
ownership, operation, possession or control of its business,
property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental to any
compromise or settlement by the Indemnitee or Indemnitees to
the holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits, disbursements,
encumbrances, liens, damages (including without limitation
damages for contamination or destruction of natural
resources), penalties and fines of any kind or nature
whatsoever (including without limitation in all cases the
reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred,
suffered or sustained by that Indemnitee based upon, arising
under or relating to Environmental Laws based on, arising out
of or relating to in whole or in part, the existence or
exercise of any rights or remedies by any Indemnitee under
this Agreement, any other Credit Document or any related
documents.
If and to the extent that the obligations of Borrower under this
Section 10.04 are unenforceable for any reason, Borrower hereby agrees
to make the maximum contribution to the payment and satisfaction of
such obligations which is permissible under applicable law.
Section X.5. Right of Setoff. In addition to and not in
limitation of all rights of offset that any Lender, the Issuing Bank or other
holder of a Note may have under applicable law, each Lender, Issuing Bank or
other holder of a Note shall, upon the occurrence of any Event of Default and
whether or not such Lender, Issuing Bank or such holder has made any demand
or any Credit Party's obligations have matured, have the right to appropriate
and apply to the payment of any Credit Party's obligations hereunder and
under the other Credit Documents, all deposits of any Credit Party (general
or special, time or demand, provisional or final) then or thereafter held by
and other indebtedness or property then or thereafter owing by such Lender,
the Issuing Bank or other holder to any Credit Party, whether or not related
to this Agreement or any transaction hereunder.
Section X.6. Benefit of Agreement; Assignments; Participations.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns
of the parties hereto, provided that Borrower may not assign or
transfer any of its interest hereunder without the prior written
consent of the Lenders and the Issuing Bank.
(b) Any Lender may make, carry or transfer Loans at, to or for
the account of, any of its branch offices or the office of an Affiliate
of such Lender.
(c) Each Lender and may assign all or a portion of its
interests, rights and obligations under this Agreement (including all
or a portion of any of its Commitments and the Loans at the time owing
to it and the Notes held by it) to any Eligible Assignee; provided,
however, that (i) the Borrower and the Agent each must give its prior
written consent to such assignment (which consent shall not be
unreasonably withheld or delayed) unless such assignment is an
Affiliate of the assigning Lender or unless (in the case of Borrower's
consent) an Event of Default has occurred and is continuing hereunder,
(ii) the amount of the Commitments of the assigning Lender subject to
each assignment (determined as of the date the assignment and
acceptance with respect to such assignment is delivered to the Agent)
shall not be less than an amount equal to $10,000,000 or greater
integral multiplies of $1,000,000 unless such assignment is to an
Affiliate of the assigning Lender or such Lender is assigning it
commitment in its entirety, (iii) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and Acceptance,
together with a Note or Notes subject to such assignment and, unless
such assignment is to an Affiliate of such Lender, a processing and
recordation fee of $3,000. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Agent in connection with such assignment. From and after
the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the
execution thereof, the assignee thereunder shall be a party hereto and
to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement. Within five (5) Business Days after receipt of the notice
and the Assignment and Acceptance, Borrower shall execute and deliver
to the Agent, in exchange for the surrendered Note or Notes, a new Note
or Notes to the order of such assignee in a principal amount equal to
the applicable Commitments assumed by it pursuant to such Assignment
and Acceptance and new Note or Notes to the assigning Lender in the
amount of its retained Commitment or Commitments. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the
date of the surrendered Note or Notes which they replace, and shall
otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower or the
Agent, sell participations to one or more banks or other entities in
all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments in the Loans owing to it
and the Notes held by it), provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating bank or
other entity shall not be entitled to the benefit (except through its
selling Lender) of the cost protection provisions contained in Article
III of this Agreement, and (iv) Borrower and the Agent and other
Lenders shall continue to deal solely and directly with each Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents, and such Lender shall retain
the sole right to enforce the obligations of Borrower relating to the
Loans and to approve any amendment, modification or waiver of any
provisions of this Agreement. Each Lender shall promptly notify in
writing the Agent and the Borrower of any sale of a participation
hereunder.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Borrower
or the other Consolidated Companies furnished to such Lender by or on
behalf of Borrower or any other Consolidated Company. With respect to
any disclosure of confidential, non-public, proprietary information,
such proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the
information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed
participant or assignee shall agree not to disclose any of such
information except (i) to directors, employees, auditors or counsel to
whom it is necessary to show such information, each of whom shall be
informed of the confidential nature of the information, (ii) in any
statement or testimony pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction over such
entity, or as otherwise required by law (provided prior notice is given
to Borrower and the Agent unless otherwise prohibited by the subpoena,
order or law), and (iii) upon the request or demand of any regulatory
agency or authority with proper jurisdiction. The proposed participant
or assignee shall further agree to return all documents or other
written material and copies thereof received from any Lender, the
Agent, the Co-Agent or Borrower relating to such confidential
information unless otherwise properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its
rights in this Agreement and the Notes issued to it to a Federal
Reserve Bank; provided that no such assignment shall release the Lender
from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b) have been
levied or imposed so as to require withholdings and reductions by the
Borrower and payment by the Borrower of additional amounts to any
Lender as a result thereof or any Lender shall make demand for payment
of any material additional amounts as compensation for increased cost
pursuant to Section 3.10, then and in such event, upon request from the
Borrower delivered to such Lender, such Lender shall assign, in
accordance with the provisions of Section 10.06(c), all of its rights
and obligations under this Agreement and the other Credit Documents to
an Eligible Assignee selected by the Borrower and consented to by the
Agent in consideration for the payment by such assignee to the Lender
of the principal of and interest on the outstanding Loans accrued to
the date of such assignment, the assumption of such Lender's
Commitments hereunder, together with any and all other amounts owing to
such Lender under any provisions of this Agreement or the other Credit
Documents accrued to the date of such assignment.
Section X.7. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE
SUPERIOR COURT OF XXXXXX COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF
GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF
GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) BORROWER HEREBY IRREVOCABLY DESIGNATES CSC CORPORATION
SERVICES, ATLANTA, GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO
RECEIVE, FOR AND ON BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE
JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE NOTES OR ANY DOCUMENT RELATED THERETO. IT IS UNDERSTOOD
THAT A COPY OF SUCH PROCESS SERVED ON SUCH LOCAL AGENT WILL BE PROMPTLY
FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF SUCH PROCESS BY MAIL TO
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, BUT THE
FAILURE OF BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Agent, the
Co-Agent, the Issuing Bank any Lender, any holder of a Note or any Credit
Party to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against Borrower in any other
jurisdiction.
Section X.8. Independent Nature of Lenders' Rights. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce
its rights pursuant to this Agreement and its Notes, and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
Section X.9. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
Section X.10. Effectiveness; Termination of Commitments;
Survival.
(a) This Agreement shall become effective on the date on which
all of the parties hereto shall have signed a copy hereof (whether the
same or different copies) and shall have delivered the same to the
Agent or, in the case of the Lenders or the Issuing Bank, shall have
given to the Agent written or telex notice (actually received) that the
same has been signed and mailed to them; provided that, the Lenders
have no obligation to make a Loan and the Issuing Bank has no
obligation is issue Letters of Credit hereunder until the Closing
Date. In the event that the Closing Date does not occur by July 2,
1998 , the Commitments and this Agreement shall terminate, subject to
the survival of the Sections referenced below.
(b) The obligations of Borrower under Sections 3.07(b), 3.10,
3.12, 3.13, 3.16 and 10.04 hereof shall survive the payment in full of
the Notes after the Maturity Date. All representations and warranties
made herein, in the certificates, reports, notices, and other documents
delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement, the other Credit Documents, and such other
agreements and documents, the making of the Loans hereunder, and the
execution and delivery of the Notes.
Section X.11. Severability. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be
invalid, illegal or unenforceable, in whole or in part, in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
Section X.12. Independence of Covenants. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or be otherwise within the limitation of,
another covenant, shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
Section X.13. Change in Accounting Principles, Fiscal Year or
Tax Laws. If (i) any preparation of the financial statements referred to in
Section 6.07 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) result in a material
change in the method of calculation of financial covenants, standards or
terms found in this Agreement, (ii) there is any change in Borrower's fiscal
quarter or Fiscal Year, or (iii) there is a material change in federal tax
laws which materially affects any of the Consolidated Companies' ability to
comply with the financial covenants, standards or terms found in this
Agreement, Borrower and the Required Lenders agree to enter into negotiations
in order to amend such provisions so as to equitably reflect such changes
with the desired result that the criteria for evaluating any of the
Consolidated Companies' financial condition shall be the same after such
changes as if such changes had not been made. Unless and until such
provisions have been so amended, the provisions of this Agreement shall
govern.
Section X.14. Headings Descriptive; Entire Agreement. The
headings of the several sections and subsections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement. This Agreement, the other
Credit Documents, and the agreements and documents required to be delivered
pursuant to the terms of this Agreement constitute the entire agreement among
the parties hereto and thereto regarding the subject matters hereof and
thereof and supersede all prior agreements, representations and
understandings related to such subject matters.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
Address for Notices: XXXXXXXX HEALTH CARE, INC.
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000 By:/s/ X. X. Xxxxxxx
Attn: K. Xxxxx Xxxxxxx Name: K. Xxxxx Xxxxxxx
Senior Vice President, Finance and Title: Senior Vice President, Finance
Assistant Secretary and Assistant Secretary
Telecopy: (000) 000-0000
[CORPORATE SEAL]
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
Address for Notices: SUNTRUST BANK, ATLANTA,
As Agent
00 Xxxx Xxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 By:/s/ Xxxxxx X. Xxxxxxx
Attention: Xxx Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Telecopy No.: (000) 000-0000
By:/s/ R.Xxxxxxx Xxxxxx
Name: R. Xxxxxxx Xxxxxx
Title: Vice President
Payment Office:
00 Xxxx Xxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
Address for Notices: WACHOVIA BANK, N.A., as Co-Agent
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
By:/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Banking Officer
Attention: Xx. Xxxx Xxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
Address for Notices: SUNTRUST BANK, ATLANTA
00 Xxxx Xxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 By:/s/ Xxxxxx X. Xxxxxxx
Attention: Xxx Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Telecopy No.: (000)000-0000
By:/s/R. Xxxxxxx Xxxxxx
Name: R. Xxxxxxx Xxxxxx
Title:Vice President
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
Address for Notices: NATIONSBANK, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 By:/s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title:Senior Vice President
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
Address for Notices:
WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
By:/s/ Xxxx X.Xxxxx
Name: Xxxx X. Xxxxx
Title: Banking Officer
Attention: Xx. Xxxx Xxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
Address for Notices:
FIRST UNION NATIONAL BANK
First Union National Bank
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
By:/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Corporate Banking Officer
Assistant Secretary
Attention: Xx. Xxxxxxxx Xxxxxx
Telecopy:
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]
MHCI SCHEDULES
Schedule 5.01
Organization and Ownership of Subsidiaries
1. The following corporations are wholly-owned subsidiaries of Borrower:
State of
Corporation Incorporation
----------------------------------------------------------------------
Custom Management Corporation Pennsylvania
Xxxx X. Xxxx & Associates, Inc. Pennsylvania
Culinary Solutions, Inc. Xxxxxxx
Xxxxx Management Services, Inc. Arizona
2. The following are wholly-owned subsidiaries of Custom Management
Corporation:
Place of
Corporation Incorporation
----------------------------------------------------------------------
Custom Management Corporation of Pennsylvania
Pennsylvania
Xxxxxxxx Custom Management Corporation Pennsylvania
of Pennsylvania
3. Borrower owns a 49% interest in Marcorp Diversified, Inc., a joint
venture between the Borrower and Xxxxx Xxxxxx, who beneficially owns
the remaining 51% interest.
Schedule 5.05
Certain Pending and Threatened Litigation
A. Borrower has assumed the liability for the following claims from
Xxxxxxxx Restaurants Inc. and has indemnified Xxxxxxxx Restaurants Inc. with
respect to the following claims pursuant to the Sharing Agreements:
1. The EEOC charge brought by Xxxxx Xxxxxx alleges sex harassment by
the CEO of Xxxxxxx Memorial Hospital and alleges that Xxxxxxxx
failed to take appropriate steps to prevent the harassment.
2. A claim of race discrimination has been brought by five employees
of Fort Xxxxxxx Regional Medical Center in Knoxville, Tennessee.
B. Please see the attached schedule of pending or threatened litigation,
claims and assessments against the Borrower.
PENDING OR THREATENED LITIGATION, CLAIMS AND ASSESSMENTS AGAINST XXXXXXXX
HEALTH CARE, INC.
X. Xxxxxx, Xxxxx x. Xxxxxxxx Restaurants Inc. et al. A lawsuit was filed
by an employee, Xxxxx Xxxxxx, against both the Company and our client,
Xxxxxxx Memorial Hospital and its CEO, alleging sexual harassment against
our client and alleging further that Xxxxxxxx failed to take appropriate
steps to prevent the harassment and retaliated against plaintiff. The
Company has investigated the matter and believes the claims are not
valid. Plaintiff has filed an amended complaint. Defendants filed
motions to dismiss which were denied. Discovery will be suspended pending
appeal of co-defendants to the denial of motions to dismiss. The Company
intends to vigorously defend itself against these claims.
X. Xxxxxx, Cozart, Dupree, Xxxxxxxx & Xxxxxxxxxx x. Xxxxxxxx Restaurants
Inc. A claim of race discrimination and retaliation was made to the State
of Tennessee Human Rights Commission by five employees of Fort Xxxxxxx
Regional Medical Center in Knoxville, Tennessee. The Commission dismissed
the claims and issued Right to Xxx letters. Suit has been filed and an
answer by the Company has been made. Discovery is in progress.
Plaintiffs were deposed on July 2, 1997. Plaintiffs have offered to
settle for $20,000. Discovery is continuing. The Company intends to
vigorously defend this claim.
X. Xxxxx, Xxxxxx x. Realty South Investors, Inc. and Xxxxxxxx Health
Care. This suit was filed in U.S. District Court, Southern District of
Florida and Xxxxxxxx first received notice of its existence on April 23,
1997 (the suit was originally filed in December, 1996 with misnamed
defendants that were never properly served). An answer has been filed.
Discovery is continuing. The plaintiff was formerly employed by
Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx, a former account
of Xxxxxxxx, and alleges race discrimination by Fountainview and Xxxxxxxx
under federal and Florida law. The Company has retained outside counsel.
The Company does not believe the claim has any merit and intends to
vigorously defend itself against it.
X. Xxxxxxxxx x. Xxxxxxxx Restaurants, Inc. - A management employee filed
a disability discrimination charge with the California Fair Employment and
Housing Commission, San Francisco, California related to a worker's
compensation injury. The Company believes there is no merit to this
claim. It filed a position statement with the Commission on May 28,
1996. The California Commission closed its investigation and case on
March 3, 1997. Marcillac filed an EEOC charge on March 21, 1997, but then
filed a lawsuit on June 27, 1997 (served July 9, 1997) alleging
disability, discrimination and contract breach. On May 6, 1998, the Court
granted the Company's Motion for Summary Judgment. Absent appeal, this
matter will be concluded.
X. Xxxxxxxx Health Care, Inc. v. Xxxxxxxxx Xxxxxxxxxxxx. Xxxxxxxx filed
suit in Circuit Court, Pinellas County, Florida, for recovery of unpaid
rent and right to possession against Xxxxxxxxx Xxxxxxxxxxxx ("EH"), a
tenant of Morrison's leased property located in St. Petersburg, Florida.
On May 6, 1997, EH submitted an Answer and counter-claimed against
Xxxxxxxx, alleging breach of contract and intentional interference with a
business relationship. At this time, the Company believes that its claims
against EH have merit, that EH's counter-claims are without merit, and
intends to vigorously protect and pursue its interests in this matter.
The parties shortly may enter into an agreement whereby EH will purchase
the property which will effectively resolve these matters.
X. Xxxxxx, Xxxxxxx X. x. Xxxxxxxx Health Care, Inc. A former employee was
terminated in August, 1997. An EEOC Charge was filed and a Right to Xxx
Letter requested on December 22, 1997. On June 4, 1998, the Company
received a suit alleging wrongful discharge, breach of implied contract,
breach of implied covenant of good faith and fair dealing, age
discrimination and tortious termination in violation of public policy.
The suit is in its early stages, but the Company believes this claim is
without merit and intends to vigorously defend these claims.
G. State of Tennessee Tax Assessment. Xxxxxxxx received an audit report
from the State of Tennessee Department of Revenue issuing a estimated
sales tax assessment in the original amount of approximately $3.29
million, based primarily upon Morrison's use of client-provided capital
assets and supply expenses. The sales tax application to client-provided
capital assets and expenses has not been applied to Xxxxxxxx in the past.
Xxxxxxxx believes at this time that the estimated assessment amount for
client-provided assets and expenses is arbitrary and for the most part
based upon estimates of the value of capital assets and expenses of an
unrelated hospital audit. Further, the Company believes that the language
in most, if not all, of the contracts for the applicable accounts provides
that the clients are responsible for a material portion of any tax which
may ultimately be paid as a result of this assessment. The State thus far
has reduced the assessment amount to $995,983. In order to protect its
interest, the Company filed suit contesting the assessment in January,
1998. Xxxxxxxx intends to vigorously defend itself against this claim and
has engaged outside counsel.
H. State of Florida Tax Assessment. The Company received on August 18,
1997, an assessment from the State of Florida in the amount of $109, 000.
The Company intends to vigorously protect its interest in this matter.
Outside counsel has filed the appropriate protest.
X. Xxxxxxx, Comminita x. Xxxxxxxx'x Cafeterias, et al., Circuit Court,
Jefferson County, Alabama. A workers' compensation benefit complaint was
forwarded to GAB for handling. An amended complaint was filed alleging
wrongful termination. The workers' compensation claim was subsequently
settled. The Plaintiff was granted a partial summary judgment related to
a defense by the Company related to issues resolved in a hearing held by
the State of Alabama Department of Industrial Relations. Plaintiff's
counsel has stated he is unwilling to reconvene mediation unless the
Company is willing to come to the table with at least $50,000. The
Company believes the claim to be without merit and intends to vigorously
defend itself.
X. Xxxxxxx x. Xxxxxxxx'x Health Care, Inc. A former management employee
filed a race and sex discrimination charge with the EEOC on April 25,
1996, arising out of removal from her assignment at Metropolitan Hospital,
Richmond, Virginia. The Company has no reason to believe that the charge
has any merit, and intends to vigorously defend the claim. A response was
sent to the EEOC on April 28, 1998.
X. Xxxxxxxx, Xxxxxx x. Xxxxxxxx Health Care, Inc. A former employee was
terminated in November, 1997. A charge was filed for age and disability
discrimination with the Ohio Civil Rights Commission and the EEOC on
December 23, 1997 and a Notice of Right to Xxx issued on March 31, 1998.
An Amended Complaint (original complaint never served) was filed May 12,
1998. The Company believes this claim is without merit and intends to
vigorously defend itself.
X. Xxxxxxx, Xxxxxx x. Xxxxxxxx Health Care, Inc. The Company received
notice of this disability discrimination charge on June 18, 1997. It was
filed with the EEOC and the South Carolina Human Affairs Commission on
June 10, 1997 by an employee in Columbia, South Carolina. The Company
responded to this allegation and a Determination Letter of No Reasonable
Cause Found was issued in our favor on February 2, 1998.
X. Xxxxx, Xxxxxx x. Xxxxxxxx Health Care. This is an age discrimination
charge filed on May 23, 1997, with the Jacksonville, Florida office of the
Equal Employment Opportunity Commission (EEOC). Xxxxx' employment as an
Assistant Manager terminated in April, 1997, pursuant to a reduction in
personnel at Methodist Hospital, Jacksonville, Florida. The Company has
no reason to believe that the charge has merit, and intends to vigorously
defend the charge.
X. Xxxxxxxxx, Uhra x. Xxxxxxxx Health Care, Inc. This is a charge of
disability discrimination filed in April, 1997 with the EEOC and the City
of St. Louis Civil Rights Enforcement Agency (SLCREA) in St. Louis,
Missouri. The Company received notice of investigation/processing by the
SLCREA on May 5, 1997. Xxxxxxxxx is a former cashier whose employment
terminated in January, 1997. At present, Company does not believe this
claim has merit and intends to vigorously defend against it. The
Company's response to the claim was filed on December 24, 1997.
X. Xxxx, Xxxxxxxxxxx x. Covenant Medical Center, Xxxxxxxx Restaurants Inc.
and Xxxxxxxx-Xxxxxxxx. A Notice of Substantial Evidence & Initiation of
Conciliation was very recently received by the Company in December, 1996
from the Illinois Human Rights Commission. This involves a claim by
another employer's former employee alleging race discrimination by
Covenant Medical Center, Xxxxxxxx and the employer company. Xxxxxxxx
intends to vigorously defend this claim.
X. Xxxxxxx, Xxxxx X. x. Xxxxxxxx'x Health Care, Inc. This is a race
discrimination charge filed on May 6, 1997 with the Tennessee Human Rights
Commission. The Company received notice of this charge on June 30, 1997
via letter dated June 27, 1997. It was filed by a former assistant
manager of Xxxxxxxx at Methodist Medical Center, Oak Ridge, TN. The
Company has begun its investigation of the claim, is not aware of any
reason to suggest that the claim has merit, and intends vigorously defend
against it.
X. Xxxxxxxx, Xxxxxxx x. Xxxxxxxx Health Care, Inc. The Company received
in November, 1997 a copy of a charge previously filed in November, 1995,
alleging race, sex and color discrimination. Since the allegations may
reference circumstances in the Burems, et al. suit referenced above, this
claim has been sent to outside counsel in the Burems suit for handling.
The Company intends to vigorously defend itself against these claims.
X. Xxxxxxx, Xxxxxxx X. x. Xxxxxxxx Health Care, Inc. The Company received
notice of a complaint being referred to the EEOC on January 6, 1998
alleging sex and national origin discrimination. The Company's
investigation was begun. On April 24, 1998, the Company received a Notice
of Right to Xxx. The Complainant has ninety (90) days from receipt of the
Right to Xxx to file suit. The Company believes the claims to be without
merit and intends to vigorously defend itself against these claims.
X. Xxxx, Xxxxxx x. Xxxxxxxx Health Care, Inc. The Company received on
March 6, 1998 a complaint with the Ohio Civil Rights Commissions alleging
race and age discrimination. The Company's investigation is in the early
stages but the Company believes the claims are without merit and it
intends to vigorously defend itself against these claims.
X. Xxxxxx, Xxxxxxxxx X. x. Xxxxxxxx Health Care, Inc. In April, 1998, the
Company received a charge of discrimination filed with the EEOC alleging
sex discrimination. The Company has investigated the matter and believes
the allegations are without merit. A response to the charge was sent by
the Company on May 22, 1998. The Company intends to vigorously defend
itself against this claim.
U. Onyeberechi, Xxxxxxxxx x. Xxxxxxxx Health Care, Inc. This is a
national origin discrimination charge filed in May, 1997 with the EEOC in
Washington, D.C. Onyeberechi was an assistant manager at Xxxxxxxx Baptist
Nursing Home in Washington, D.C. whose employment was terminated effective
December, 1997. The Company submitted a response to the EEOC on December
8, 1997, and has not been notified of further action. The Company does
not believe that the charge has merit and intends to continue to
vigorously defend against it.
V. XxXxxxxx, Xxxxxx Xxx x. Xxxxxxxx Health Care, Inc. This is a race
discrimination complaint filed in December, 1996, with the New York State
Division of Human Rights (through the Suffolk County Human Rights
Commission). XxXxxxxx was an assistant manager at University Hospital
(SUNY), Stony Brook, New York, who was terminated in May, 1996. The
Company has begun investigation of this claim, retained outside counsel to
assist in its response and defense, and has informed the Commission of
this. At this early stage of the investigation, it is too early to
determine the merit or value of the claim, but the Company intends to
vigorously defend against it.
X. Xxxxxx, Xxxxxxxx x. Xxxxxxxx Health Care, Inc. This is a sex and
disability discrimination complaint filed with the District of Columbia
Department of Human Rights and Minority Business Development in July, 1997
and received by the Company in September, 1997. Xxxxxx was an hourly
employee at Xxxxxx Xxxxxx Nursing Home, Washington, D.C., and her claims
relate to an alleged on the job slip and fall type injury. The Company
has begun investigating the claim, believes it is without merit and
intends to vigorously defend its interests. A mediation meeting took
place on March 13, 1998, and the Company may attempt to settle for
nuisance value.
X. Xxxx, Xxxxxxx x. Xxxxxxxx Health Care, Inc. This is a claim of sex
discrimination and retaliation for a complaint of discrimination filed
with the New York State Division of Human Rights in March, 1998, by a
former employee at University Hospital (SUNY), Stony Brook, New York. The
Company has begun investigating this claim and has enlisted the assistance
of outside counsel. The Company cannot yet determine with certainty as to
any potential merit of value, but it intends to vigorously defend against
it.
X. Xxxx, Xxxxxx x. Xxxxxxxx Heathcare Services. This is a race and sex
discrimination claim filed in March, 1997 with the EEOC in Atlanta,
Georgia. Xxxx was an applicant from a placement agency that was not
selected for a clerk position in the corporate headquarters in Smyrna,
Georgia. The Company has conducted its initial investigation and does not
believe the claim has merit. The Company plans to submit a response to
the EEOC before the end of June, 1998, and intends to vigorously defend
itself.
Z. Xxx, Xxxx Xxxxx x. Xxxxxxxx Health Service. The Company received notice
of this age and national origin discrimination charge on June 1, 1998. It
was filed with the City of Tampa Department of Community Affairs, Office
of Human Rights/ Community Services (and EEOC) in May, 1998 by an employee
in Tampa, Florida. The Company has begun investigating, intends to
respond to this allegation and vigorously protect its interests, but at
this time cannot determine the merits or potential liability of the claims
since all relevant facts are not yet known.
Section 5.09(a)
Environmental Compliance
NONE
Section 5.09(b)
Environmental Notices
NONE
Schedule 5.09(c)
Environmental Permits
NONE
Schedule 5.11
No Default
None, other than alleged defaults which are the subject of pending or
threatened litigation disclosed in Schedule 5.05.
Schedule 5.12
Burdensome Restrictions
NONE
Schedule 5.13
Tax Filings and Payments
1. Borrower periodically receives notices of assessment from the IRS and
other taxing authorities, the aggregate amount of which at any time is
immaterial. These notices generally relate to misunderstandings regarding
Borrower's tax situation, payments which have crossed in the mail with
notices, and disputes which have been or are in the process of being resolved.
2. The Borrower owes the state of Arkansas $350.42 for franchise taxes due
for years 1997 and 1998.
3. See also Schedule 5.05 - Certain Pending and Threatened Litigation.
Section 5.14
Material Subsidiaries
None
Section 5.16
Employee Benefit Matters
1. Title IV Plans. The Consolidated Companies and its ERISA Affiliates
maintain or contribute to the following Plans subject to Title IV of
ERISA:
x. Xxxxxxxx Restaurants Inc. Retirement Plan
b. Local 1115 District Council Pension Fund
2. Funding.
a. The Xxxxxxxx Inc. Retirement Plan (the "Retirement Plan"), if
terminated as of June 6, 1998, would have had an amount of
unfunded benefit liabilities equal to approximately
$__471,000___, projected using a _5.93__% interest rate and the
GATT-required mortality tables.
b. As of June 6, 1998, Xxxxxxxx Health Care has accrued $1,051,246
with respect to post-retirement medical expenses.
Section 5.17
Patents, Trademarks, Licenses, and
Other Intellectual Property Matters
The National Livestock and Meat Board, a/k/a The Meat Board, The American
Meat Institute and the Food Marketing Institute opposed Borrower's
application for federal registration of the xxxx NUTRI-FACTS, which Borrower
uses for certain computer software programs. Xxxxxxxx entered into a license
agreement with those parties under which Borrower may continue to use the
xxxx NUTRI-FACTS, and Xxxxxxxx has filed an abandonment of the subject
trademark application.
Section 5.18
Ownership of Properties
NONE
Section 5.19
Labor and Employment Matters
NONE
Section 5.22
Dividend Restrictions
NONE
Existing Indebtedness
As of May 31, 1998
(In thousands)
Revolving Credit Loans under
Original Credit Facility $ 5,000/1
Term Loans under Original
Credit Facility 31,000/1
----------------
$ 36,000
================
The Borrower has entered into the Sharing Agreements with MFCI and RTI
providing for the assumptions of liabilities and cross-indemnities designed
to allocate, generally, among these three companies, financial
responsibility for liabilities arising out of or in connection with
business activities prior to Distribution.
/1To be refinanced by initial borrowing under this Agreement on the Closing
Date.
Schedule 7.02
Existing Liens
NONE
EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT NOTE
July 2, 1998 $15,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, XXXXXXXX HEALTH CARE, INC.,
a Georgia corporation ("Borrower"), promises to pay to the order of FIRST
UNION NATIONAL BANK, a national banking association ("Lender") at the
principal office of the Agent at 00 Xxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or at
such other place as the holder hereof may designate in immediately available
funds in lawful money of the United States, the principal sum of (i) FIFTEEN
MILLION AND NO/100 DOLLARS ($15,000,000.00) or (ii) so much as shall have
been advanced hereunder as Eurodollar Advances and Base Rate Advances
pursuant to Article II of the Credit Agreement and remaining outstanding as
shown on the records of the Agent and the Lender, plus all accrued and unpaid
interest thereon as set forth in that certain Amended and Restated Credit
Agreement dated as of July 2, 1998 among the Borrower, the financial
institutions from time to time a party thereto (the "Lenders"), SunTrust
Bank, Atlanta, as the issuing bank (the "Issuing Bank"), SunTrust Bank,
Atlanta, as Agent for the Issuing Bank and the Lenders (the "Agent"), and
Wachovia Bank, N.A. as Co-Agent for the Issuing Bank and the Lenders (the
"Co-Agent") (as the same may hereafter be amended, modified, extended or
supplemented from time to time, the "Agreement"). Interest shall accrue from
the date hereof up to and through the date on which all principal and
interest hereunder is paid in full, shall be computed on the basis of actual
days elapsed in a 360-day year, and shall be calculated on the outstanding
principal balance hereunder at the interest rates specified in Section 3.03
of the Agreement.
Principal and interest hereunder shall be paid on the dates
specified in the Agreement and shall be due and payable in full on the
Maturity Date (as defined in the Agreement). Any installment of principal
and, to the extent permitted by law, interest due under this Amended and
Restated Revolving Credit Note (the "Note") that is not paid on the due date
therefor whether on the Maturity Date, or resulting from the acceleration of
maturity upon the occurrence of an Event of Default (as defined in the
Agreement), shall bear interest from the date due until payment in full at
the default rate specified in Section 3.03(c) of the Agreement.
This Note is one of the Notes defined in, and evidences Advances
incurred pursuant to, the Agreement, to which Agreement reference is hereby
made for a full and complete description of such terms and conditions,
including, without limitation, provisions for the acceleration of the
maturity hereof upon the existence or occurrence of certain conditions or
events, and the terms of any permitted prepayments hereof. All capitalized
terms used in this Note shall have the same meanings as set forth in the
Agreement.
Upon the existence or occurrence of any Event of Default, the
principal and all accrued interest hereof shall automatically become, or may
be declared, due and payable in the manner and with the effect provided in
the Agreement.
Lender shall at all times have a right of set-off against any
deposit balances of Borrower in the possession of Lender, and Lender may
apply the same against payment of this Note or any other indebtedness of
Borrower to Lender arising under the Credit Documents. The payment of any
indebtedness evidenced by this Note shall not affect the enforceability of
this Note as to any future, different or other indebtedness evidenced
hereby. In the event the indebtedness evidenced by this Note is collected by
legal action or through an attorney-at-law, or in bankruptcy or other
judicial proceedings, Lender shall be entitled to recover from Borrower all
costs of collection, including, without limitation, reasonable attorneys'
fees actually incurred.
Failure or forbearance of Lender to exercise any right hereunder,
or otherwise granted by the Agreement or by law, shall not affect or release
the liability of Borrower hereunder, and shall not constitute a waiver of
such right unless so stated by Lender in writing. This Note shall be deemed
to be made under, and shall be construed in accordance with and governed by,
the laws of the State of Georgia (without giving effect to the conflict of
laws provisions thereof).
DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST
ARE HEREBY WAIVED.
Time is of the essence hereunder.
EXECUTED AND DELIVERED under seal of Borrower by its duly
authorized officers as of the day and year first above written in Atlanta,
Georgia.
XXXXXXXX HEALTH CARE, INC.
[CORPORATE SEAL] By: /s/ X. X. Xxxxxxx
Name: K. Xxxxx Xxxxxxx
Title: Senior Vice President
Attest: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
EXHIBIT B
FORM OF AMENDED AND RESTATED SWING LINE NOTE
July 2, 1998 $10,000,000.00
Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, XXXXXXXX HEALTH CARE, INC.,
a Georgia corporation ("Borrower"), promises to pay to the order of SUNTRUST
BANK, ATLANTA, a Georgia banking corporation ("Swing Line Lender") at its
principal office at 00 Xxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or at such other
place as the holder hereof may designate in immediately available funds in
lawful money of the United States, the principal sum of (i) TEN MILLION AND
NO/100 DOLLARS ($10,000,000.00) or (ii) so much as shall have been advanced
hereunder as Swing Rate Advance pursuant to Article II of the Credit
Agreement and remaining outstanding as shown on the records of the Swing Line
Lender, plus all accrued and unpaid interest thereon as set forth in that
certain Amended and Restated Credit Agreement dated as of July 2, 1998 among
the Borrower, SunTrust Bank, Atlanta, a banking corporation organized under
the laws of the State of Georgia, the other banks and lending institutions
from time to time a party thereto (the "Lenders"), SunTrust Bank, Atlanta, as
the issuing bank (the "Issuing Bank"), and SunTrust Bank, Atlanta, as Agent
(the "Agent") for the Issuing Bank and the Lenders, and Wachovia Bank, N.A.
as Co-Agent (the "Co-Agent") for the Issuing Bank and the Lenders (as the
same may hereafter be amended, modified, extended or supplemented from time
to time, the "Agreement"). Interest shall accrue from the date hereof up to
and through the date on which all principal and interest hereunder is paid in
full, shall be computed on the basis of actual days elapsed in a 360-day
year, and shall be calculated on the outstanding principal balance hereunder
at the interest rates specified in Section 3.03 of the Agreement.
Principal and interest hereunder shall be paid on the dates
specified in the Agreement and shall be due and payable in full on the
Maturity Date (as defined in the Agreement). Any installment of principal
and, to the extent permitted by law, interest due under this Amended and
Restated Swing Line Note (the "Note") that is not paid on the due date
therefor whether on the maturity date, or resulting from the acceleration of
maturity upon the occurrence of an Event of Default (as defined in the
Agreement), shall bear interest from the date due until payment in full at
the default rate specified in Section 3.03(c) of the Agreement.
This Note evidences the Swing Line Loans made pursuant to the
terms and conditions of the Agreement, to which Agreement reference is hereby
made for a full and complete description of such terms and conditions,
including, without limitation, provisions for the acceleration of the
maturity hereof upon the existence or occurrence of certain conditions or
events, and the terms of any permitted prepayments hereof. This Note is being
delivered by the Borrower and accepted by the Borrower as a substitution for
that certain Swing Line Note, dated as of March 6, 1996 by the Borrower in
favor of the Swing Line Lender, but not as payment of such indebtedness or as
a novation with respect thereto. All capitalized terms used in this Note
shall have the same meanings as set forth in the Agreement.
Upon the existence or occurrence of any Event of Default, the
principal and all accrued interest hereof shall automatically become, or may
be declared, due and payable in the manner and with the effect provided in
the Agreement.
Swing Line Lender shall at all times have a right of set-off
against any deposit balances of Borrower in the possession of Swing Line
Lender, and Swing Line Lender may apply the same against payment of this Note
or any other indebtedness of Borrower to Swing Line Lender arising under the
Credit Documents. The payment of any indebtedness evidenced by this Note
shall not affect the enforceability of this Note as to any future, different
or other indebtedness evidenced hereby. In the event the indebtedness
evidenced by this Note is collected by legal action or through an
attorney-at-law, or in bankruptcy or other judicial proceedings, Swing Line
Lender shall be entitled to recover from Borrower all costs of collection,
including, without limitation, reasonable attorneys' fees actually incurred.
Failure or forbearance of Swing Line Lender to exercise any right
hereunder, or otherwise granted by the Agreement or by law, shall not affect
or release the liability of Borrower hereunder, and shall not constitute a
waiver of such right unless so stated by Lender in writing. This Note shall
be deemed to be made under, and shall be construed in accordance with and
governed by, the laws of the State of Georgia.
DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST
ARE HEREBY WAIVED.
Time is of the essence hereunder.
EXECUTED AND DELIVERED under seal of Borrower by its duly
authorized officers as of the day and year first above written in Atlanta,
Georgia.
XXXXXXXX HEALTH CARE, INC.
[CORPORATE SEAL] By: /s/ X. X. Xxxxxxx
Name: K. Xxxxx Xxxxxxx
Title: Senior Vice President
Attest:/s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
EXHIBIT C
SUBSIDIARY GUARANTY AGREEMENT
This SUBSIDIARY GUARANTY AGREEMENT (this "Guaranty"), dated as of
July 2, 1998 is made by CULINARY SOLUTIONS, INC., a corporation organized and
existing under the laws of Georgia (hereinafter, collectively with all
Additional Guarantors hereafter becoming a party hereto, the "Guarantor"), in
favor of SUNTRUST BANK, ATLANTA, a Georgia banking corporation, as Agent (the
"Agent"), and WACHOVIA BANK, N.A., a national banking association, as
Co-Agent (the "Co-Agent) for the banks and other lending institutions parties
to the Credit Agreement (as hereinafter defined) and each assignee thereof
becoming a "Lender" as provided therein (the "Lenders"), and SUNTRUST BANK,
ATLANTA, in its capacity as Issuing Bank (the "Issuing Bank") (the Lenders,
the Issuing Bank, the Agent and the Co-Agent being collectively referred to
herein as the "Guaranteed Parties");
W I T N E S S E T H:
WHEREAS, XXXXXXXX HEALTH CARE, INC., a corporation organized and
existing under the laws of the State of Georgia (the "Borrower"), the
Lenders, the Issuing Bank, the Agent and the Co-Agent have entered into that
certain Amended and Restated Credit Agreement dated as of July 2, 1998 (as
the same may hereafter be amended, restated, supplemented or otherwise
modified from time to time, and including all schedules, riders, and
supplements thereto, the "Credit Agreement"; terms defined therein and not
otherwise defined herein being used herein as therein defined);
WHEREAS, the Borrower owns, directly or indirectly, all or a
majority of the outstanding capital stock of the Guarantor;
WHEREAS, the Borrower and the Guarantor share an identity of
interest as members of a consolidated group of companies engaged in
substantially similar businesses with the Borrower providing certain
centralized financial, accounting and management services to the Guarantor;
WHEREAS, consummation of the transactions pursuant to the Credit
Agreement will facilitate expansion and enhance the overall financial
strength and stability of the Borrower's entire corporate group, including
the Guarantor; and
WHEREAS, it is a condition precedent to the Lenders' and Issuing
Bank's obligations to enter into the Credit Agreement and to make extensions
of credit thereunder that the Guarantor execute and deliver this Guaranty,
and the Guarantor desires to execute and deliver this Guaranty to satisfy
such condition precedent;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Issuing Bank and the Lenders to enter into and perform their
obligations under the Credit Agreement, the Guarantor hereby agrees as
follows:
SECTION 1. Guaranty. The Guarantor hereby, irrevocably and
unconditionally, guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Loans, Letter of Credit
Obligations and all other Obligations owing by the Borrower to the Lenders,
the Issuing Bank, the Agent or the Co-Agent, or any of them, under the Credit
Agreement, the Notes, any Letter of Credit and the other Credit Documents,
including all renewals, extensions, modifications and refinancings thereof,
now or hereafter owing, whether for principal, interest, fees, expenses or
otherwise, and any and all reasonable out-of-pocket expenses (including
reasonable attorneys' fees actually incurred and expenses) incurred by the
Agent in enforcing any rights under this Guaranty (collectively, the
"Guaranteed Obligations"), including without limitation, all interest which,
but for the filing of a petition in bankruptcy with respect to the Borrower,
would accrue on any principal portion of the Guaranteed Obligations. Any and
all payments by the Guarantor hereunder shall be made free and clear of and
without deduction for any set-off, counterclaim, or withholding so that, in
each case, each Guaranteed Party will receive, after giving effect to any
Taxes (as such term is defined in the Credit Agreement, but excluding Taxes
imposed on overall net income of the Guaranteed Party to the same extent as
excluded pursuant to the Credit Agreement), the full amount that it would
otherwise be entitled to receive with respect to the Guaranteed Obligations
(but without duplication of amounts for Taxes already included in the
Guaranteed Obligations). The Guarantor acknowledges and agrees that this is
a guarantee of payment when due, and not of collection, and that this
Guaranty may be enforced up to the full amount of the Guaranteed Obligations
without proceeding against the Borrower, against any security for the
Guaranteed Obligations or under any other guaranty covering any portion of
the Guaranteed Obligations.
SECTION 2. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
the Credit Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Guaranteed Party with respect thereto. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional in
accordance with its terms and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation, the following (whether or not the Guarantor consents
thereto or has notice thereof):
(a) any change in the time, place or manner of payment of, or
in any other term of, all or any of the Guaranteed Obligations, any
waiver, indulgence, renewal, extension, amendment or modification of or
addition, consent or supplement to or deletion from or any other action
or inaction under or in respect of the Credit Agreement, the other
Credit Documents, or any other documents, instruments or agreements
relating to the Guaranteed Obligations or any other instrument or
agreement referred to therein or any assignment or transfer of any
thereof;
(b) any lack of validity or enforceability of the Credit
Agreement, the other Credit Documents, or any other document,
instrument or agreement referred to therein or any assignment or
transfer of any thereof;
(c) any furnishing to the Guaranteed Parties of any additional
security for the Guaranteed Obligations, or any sale, exchange, release
or surrender of, or realization on, any security for the Guaranteed
Obligations;
(d) any settlement or compromise of any of the Guaranteed
Obligations, any security therefor, or any liability of any other party
with respect to the Guaranteed Obligations, or any subordination of the
payment of the Guaranteed Obligations to the payment of any other
liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating
to the Guarantor or the Borrower, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or lien on any
collateral, or any amendment or waiver of or consent to departure from
any guaranty or security, for all or any of the Guaranteed Obligations;
(g) any application of sums paid by the Borrower or any other
Person with respect to the liabilities of the Borrower to the
Guaranteed Parties, regardless of what liabilities of the Borrower
remain unpaid;
(h) any act or failure to act by any Guaranteed Party which may
adversely affect the Guarantor's subrogation rights, if any, against
the Borrower to recover payments made under this Guaranty; and
(i) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Guarantor.
If claim is ever made upon any Guaranteed Party for repayment or recovery of
any amount or amounts received in payment or on account of any of the
Guaranteed Obligations, and any Guaranteed Party repays all or part of said
amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over the Guaranteed Party or any of
its property, or (b) any settlement or compromise of any such claim effected
by the Guaranteed Party with any such claimant (including the Borrower or a
trustee in bankruptcy for the Borrower), then and in such event the Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall
be binding on it, notwithstanding any revocation hereof or the cancellation
of the Credit Agreement, the other Credit Documents, or any other instrument
evidencing any liability of the Borrower, and the Guarantor shall be and
remain liable to the Guaranteed Party for the amounts so repaid or recovered
to the same extent as if such amount had never originally been paid to the
Guaranteed Party.
SECTION 3. Waiver. The Guarantor hereby waives notice of acceptance
of this Guaranty, notice of any liability to which it may apply, and further
waives presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking of other action by the
Guaranteed Parties against, and any other notice to, the Borrower or any
other party liable with respect to the Guaranteed Obligations (including the
Guarantor or any other Person executing a guaranty of the obligations of the
Borrower).
SECTION 4. Waiver of Subrogation; Rights of Contribution. No
Guarantor will exercise any rights against the Borrower which it may acquire
by way of subrogation or contribution, by any payment made hereunder or
otherwise and each Guarantor hereby expressly waives any claim, right or
remedy which such Guarantor may now have or hereafter acquire against the
Borrower that arises hereunder and/or from the performance by the Guarantor
hereunder, including, without limitation, any claim, right or remedy of any
Guaranteed Party against the Borrower or any security which any Guaranteed
Party now has or hereafter acquires, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under color of law or
otherwise unless and until the Guaranteed Obligations have been indefeasibly
paid in full.
The following provisions of this Section 4 shall be effective at
all times when there are multiple guarantors party hereto. In the event that
any Guarantor (the "Funding Guarantor") shall make any payment or payments
under this Guaranty or shall suffer any loss as a result of any realization
upon any collateral granted by it to secure its obligations hereunder, each
other Guarantor (each, a "Contributing Guarantor") hereby agrees to
contribute to the Funding Guarantor an amount equal to such Contributing
Guarantor's pro rata share of such payment or payments made, or losses
suffered, by such Funding Guarantor determined by reference to the ratio of
(a) the dollar amount of the percentage of each such Contributing Guarantor's
Net Assets (without giving effect to any right to receive any contribution or
subrogation or obligation to make any contribution hereunder), to (b) the sum
of the Net Assets of all Guarantors (including the Funding Guarantor)
hereunder (without giving effect to any right to receive contribution or
subrogation hereunder or any obligation to make any contribution hereunder);
provided, that the Contributing Guarantor shall not be obligated to make any
such payment to the Funding Guarantor if the Contributing Guarantor is not
solvent at the time of such contribution or if the Contributing Guarantor
would be rendered not solvent as a result thereof. Nothing in this Section
shall affect each Guarantor's several liability for the entire amount of the
Guaranteed Obligations, subject only to the limitations set forth in
Section 14. For the purposes of this Section 4, (x) the "Net Assets" of any
Guarantor shall mean the highest amount, as of any Determination Date, by
which (A) the aggregate present fair saleable value of the assets of such
Guarantor exceeds (B) the amount of all the debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of such Guarantor hereunder), and
(y) "Determination Date" shall mean each of (1) the Closing Date, (2) the
date of commencement of a case under the Bankruptcy Code in which a Guarantor
is a debtor, and (3) the date enforcement hereunder is sought with respect
to such Guarantor. Each Funding Guarantor covenants and agrees that its
right to receive any contribution from any Contributing Guarantor hereunder
shall be subordinated and junior in right of payment in full of all of the
Guaranteed Obligations.
SECTION 5. Severability. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 6. Amendments, Etc. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom
shall in any event be effective unless the same shall be in writing executed
by the Agent.
SECTION 7. Notices. All notices and other communications provided for
hereunder shall be given in the manner specified in the Credit Agreement (i)
in the case of the Agent, at the address specified for the Agent in the
Credit Agreement, and (ii) in the case of the Guarantor, at the addresses
specified for the Guarantor in this Guaranty or the applicable supplement
hereto.
SECTION 8. No Waiver; Remedies. No failure on the part of the Agent
or other Guaranteed Parties to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. No notice to or demand
on the Guarantor in any case shall entitle the Guarantor to any other further
notice or demand in any similar or other circumstances or constitute a waiver
of the rights of the Agent or other Guaranteed Parties to any other or
further action in any circumstances without notice or demand. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 9. Right Of Set Off. In addition to and not in limitation of
all rights of offset that the Agent or other Guaranteed Parties may have
under applicable law, the Agent or other Guaranteed Parties shall, upon the
occurrence of any Event of Default and whether or not the Agent or other
Guaranteed Parties have made any demand or the Guaranteed Obligations are
matured, have the right to appropriate and apply to the payment of the
Guaranteed Obligations, all deposits of the Guarantor (general or special,
time or demand, provisional or final) then or thereafter held by and other
indebtedness or property then or thereafter owing by the Agent or other
Guaranteed Parties to the Guarantor, whether or not related to this Guaranty
or any transaction hereunder. The Guaranteed Parties shall promptly notify
the Guarantor of any offset hereunder.
SECTION 10. Continuing Guaranty; Transfer Of Obligations. This
Guaranty is a continuing guaranty and shall (i) remain in full force and
effect until payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the termination of the Commitments,
(ii) be binding upon the Guarantor, its successors and assigns, and (iii)
inure to the benefit of and be enforceable by the Agent, its successors,
transferees and assigns, for the benefit of the Guaranteed Parties.
SECTION 11. Governing Law; Appointment Of Agent For Service Of Process;
Submission To Jurisdiction; Waiver of Jury Trial.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE SUPERIOR
COURT OF XXXXXX COUNTY OF THE STATE OF GEORGIA OR OF THE UNITED STATES
OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND
DELIVERY OF THIS GUARANTY, THE GUARANTOR HEREBY CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID
COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS
OF THE AGENT AND OTHER GUARANTEED PARTIES WITH RESPECT TO THIS GUARANTY
OR ANY DOCUMENT RELATED HERETO. THE GUARANTOR HEREBY IRREVOCABLY
DESIGNATES PRENTICE HALL CORPORATION OF ATLANTA, GEORGIA, AS THE
DESIGNEE, APPOINTEE AND AGENT OF THE GUARANTOR TO RECEIVE, FOR AND ON
BEHALF OF THE GUARANTOR, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY
DOCUMENT RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED
THIRTY DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS UNDERSTOOD THAT
A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED
BY SUCH LOCAL AGENT AND BY THE SERVER OF PROCESS BY MAIL TO THE
GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF THE
GUARANTOR TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. THE
GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED
THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER
JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR
HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN
CONNECTION HEREUNDER OR THEREUNDER.
SECTION 12. Subordination Of the Borrower's Obligations To the
Guarantor. As an independent covenant, the Guarantor hereby expressly
covenants and agrees for the benefit of the Agent and other Guaranteed
Parties that all obligations and liabilities of the Borrower to the
Guarantor of whatsoever description including, without limitation, all
intercompany receivables of the Guarantor from the Borrower ("Junior Claims")
shall be subordinate and junior in right of payment to all obligations of the
Borrower to the Agent and other Guaranteed Parties under the terms of the
Credit Agreement and the other Credit Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such
Event of Default shall have been cured, waived, or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities by setoff
or otherwise) shall be made by the Borrower to the Guarantor on account of or
in any manner in respect of any Junior Claim except such payments and
distributions the proceeds of which shall be applied to the payment of Senior
Claims.
In the event of a Proceeding (as hereinafter defined), all Senior
Claims shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim except such payments and distributions the proceeds of which shall be
applied to the payment of Senior Claims. For the purposes of the previous
sentence, "Proceeding" means the Borrower or the Guarantor shall commence a
voluntary case concerning itself under the Bankruptcy Code or any other
applicable bankruptcy laws; or any involuntary case is commenced against the
Borrower or the Guarantor; or a custodian (as defined in the Bankruptcy Code
or any other applicable bankruptcy laws) is appointed for, or takes charge
of, all or any substantial part of the property of the Borrower or the
Guarantor, or the Borrower or the Guarantor commences any other proceedings
under any reorganization arrangement, adjustment of debt, relief of debtor,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or the Guarantor,
or any such proceeding is commenced against the Borrower or the Guarantor, or
the Borrower or the Guarantor is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is
entered; or the Borrower or the Guarantor suffers any appointment of any
custodian or the like for it or any substantial part of its property; or the
Borrower or the Guarantor makes a general assignment for the benefit of
creditors; or the Borrower or the Guarantor shall fail to pay, or shall state
that it is unable to pay, or shall be unable to pay, its debts generally as
they become due; or the Borrower or the Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
or the Borrower or the Guarantor shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action shall be taken by the Borrower or the Guarantor for the
purpose of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is
made to the Guarantor in contravention of this Section 12, such payment or
distribution shall be deemed received in trust for the benefit of the Agent
and other Guaranteed Parties and shall be immediately paid over to the Agent
for application against the Guaranteed Obligations in accordance with the
terms of the Credit Agreement.
The Guarantor agrees to execute such additional documents as the
Agent may reasonably request to evidence the subordination provided for in
this Section 12.
SECTION 13. Automatic Acceleration in Certain Events. Upon the
occurrence of an Event of Default specified in Section 8.07 of the Credit
Agreement, all Guaranteed Obligations shall automatically become immediately
due and payable by the Guarantor, without notice or other action on the part
of the Agent or other Guaranteed Parties, and regardless of whether payment
of the Guaranteed Obligations by the Borrower has then been accelerated. In
addition, if any event of the types described in Section 8.07 of the Credit
Agreement should occur with respect to the Guarantor, then the Guaranteed
Obligations shall automatically become immediately due and payable by the
Guarantor, without notice or other action on the part of the Agent or other
Guaranteed Parties, and regardless of whether payment of the Guaranteed
Obligations by the Borrower has then been accelerated.
SECTION 14. Savings Clause. (a) It is the intent of the Guarantor and
the Guaranteed Parties that the Guarantor's maximum obligations hereunder
shall be, but not in excess of:
(i) in a case or proceeding commenced by or against the
Guarantor under the Bankruptcy Code on or within one year from
the date on which any of the Guaranteed Obligations are incurred,
the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) to be avoidable or unenforceable against the
Guarantor 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 the
Guarantor under the Bankruptcy Code subsequent to one year from
the date on which any of the Guaranteed Obligations are incurred,
the maximum amount which would not otherwise cause the
Guaranteed Obligations (or any other obligations of the Guarantor
to the Guaranteed Parties) to be avoidable or unenforceable
against the Guarantor 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 the
Guarantor under any law, statute or regulation other than the
Bankruptcy Code (including, without limitation, any other
bankruptcy, reorganization, arrangement, moratorium, readjustment
of debt, dissolution, liquidation or similar debtor relief laws),
the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) to be avoidable or unenforceable against the
Guarantor under such law, statute or regulation including,
without limitation, any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability
of the Guaranteed Obligations (or any other obligations of the Guarantor to
the Guaranteed Parties) shall be determined in any such case or proceeding
shall hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 14(a), but only to the
extent that the Guaranteed Obligations would otherwise be subject to
avoidance under the Avoidance Provisions if the Guarantor is not deemed
to have received valuable consideration, fair value or reasonably
equivalent value for the Guaranteed Obligations, or if the Guaranteed
Obligations would render the Guarantor insolvent, or leave the
Guarantor with an unreasonably small capital to conduct its business,
or cause the Guarantor 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 Guaranteed Obligations
are deemed to have been incurred under the Avoidance Provisions and
after giving effect to the contribution by the Guarantor, the maximum
Guaranteed Obligations for which the Guarantor shall be liable
hereunder shall be reduced to that amount which, after giving effect
thereto, would not cause the Guaranteed Obligations (or any other
obligations of the Guarantor to the Guaranteed Parties), as so reduced,
to be subject to avoidance under the Avoidance Provisions. This
Section 14(b) is intended solely to preserve the rights of the
Guaranteed Parties hereunder to the maximum extent that would not cause
the Guaranteed Obligations of the Guarantor to be subject to avoidance
under the Avoidance Provisions, and neither the Guarantor nor any
other Person shall have any right or claim under this Section 14 as
against the Guaranteed Parties that would not otherwise be available to
such Person under the Avoidance Provisions.
(c) None of the provisions of this Section 14 are intended in
any manner to alter the obligations of any holder of Subordinated Debt
or the rights of the holders of "senior indebtedness" as provided by
the terms of the Subordinated Debt. Accordingly, it is the intent of
the Guarantor that, in the event that any payment or distribution is
made with respect to the Subordinated Debt prior to the payment in full
of the Guaranteed Obligations by virtue of the provisions of this
Section 14, in any case or proceeding of the kinds described in clauses
(i)-(iii) of Section 14(a), the holders of the Subordinated Debt shall
be obligated to pay or deliver such payment or distribution to or for
the benefit of the Guaranteed Parties. Furthermore, in respect of the
Avoidance Provisions, it is the intent of the Guarantor that the
subrogation rights of the holders of Subordinated Debt with respect to
the obligations of the Guarantor under this Guaranty, be subject in all
respects to the provisions of Section 14(b).
SECTION 15. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
the Guarantor assumes and incurs hereunder, and agrees that none of the
Guaranteed Parties will have any duty to advise the Guarantor of information
known to it or any of them regarding such circumstances or risks.
SECTION 16. Representations and Warranties. The Guarantor represents
and warrants as to itself that all representations and warranties relating to
it contained in Sections 6.01 through 6.06 of the Credit Agreement are true
and correct.
SECTION 17. Survival of Agreement. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Guaranty and the Credit Agreement, the making of the Loans, the issuance of
the Letters of Credit, and the execution and delivery of the Notes and the
other Credit Documents.
SECTION 18. Counterparts. This Guaranty and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
SECTION 19. Additional Guarantors. Upon execution and delivery by any
Subsidiary of the Borrower of an instrument in the form of Annex 1, such
Subsidiary of the Borrower shall become a Guarantor hereunder with the same
force and effect as if originally named a Guarantor herein (each an
"Additional Guarantor") and its obligations hereunder shall be joint and
several with the Guarantor. The execution and delivery of any such
instrument shall not require the consent of any other Guarantor hereunder.
The rights and obligations of the Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any Additional Guarantor as
a party to this Guaranty.
IN WITNESS WHEREOF, the Guarantor and the Agent have caused this
Guaranty to be duly executed and delivered by their respective duly
authorized officers as of the date first above written in Atlanta, Georgia.
Address for Notices: CULINARY SOLUTIONS, INC.
0000 Xxxx Xxxx Xx., X.X.
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
By:/s/ X. X.Xxxxxxx
Name: K. Xxxxx Xxxxxxx
Attn: Xxxxx Xxxxxxx Title: Senior Vice President, Finance
Telecopy: (000) 000-0000
Attest:/s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Secretary
[CORPORATE SEAL]
STATE OF GEORGIA
COUNTY OF XXXX
Signed, sealed and delivered
in the presence of:
XXXXXX XXXXXXXXX
Notary Public
Date Executed by Notary:
July 1, 1998
My commission expires:
November 11, 2000
[NOTARIAL SEAL]
SUNTRUST BANK, ATLANTA
("Agent")
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By:/s/ R. Xxxxxxx Xxxxxx
Name: R. Xxxxxxx Xxxxxx
Title:Vice President
WACHOVIA BANK, N.A.
("Co-Agent")
By:/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title:Banking Officer
SECTION 12 OF THE
FOREGOING GUARANTY
ACKNOWLEDGED AND
AGREED TO:
XXXXXXXX HEALTH CARE, INC.
By:/s/ X. X. Xxxxxxx
Name: K. Xxxxx Xxxxxxx
Title:Senior Vice President, Finance
and Assistant Secretary
SUPPLEMENT
TO
SUBSIDIARY GUARANTY AGREEMENT
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this
"Supplement to Guaranty Agreement"), dated as of ___________, _____, made by
______________________, a ________ corporation (the "Additional Guarantor"),
in favor of SUNTRUST BANK, ATLANTA, a Georgia banking corporation, as Agent
(the "Agent") and WACHOVIA BANK, N.A., a national bank association, as
Co-Agent (the "Co-Agent") for the banks and other lending institutions
parties to the Credit Agreement (as hereinafter defined) and each assignee
thereof becoming a "Lender" as provided therein (the "Lenders"), and SUNTRUST
BANK ATLANTA, as Issuing Bank (the "Issuing Bank"), the Lenders, the Issuing
Bank, the Agent and the Co-Agent being collectively referred to herein as the
"Guaranteed Parties").
W I T N E S S E T H:
WHEREAS, XXXXXXXX HEALTH CARE, INC. (the "Borrower"), the
Lenders, the Issuing Bank, the Agent and the Co-Agent are parties to an
Amended and Restated Credit Agreement, dated as of July 2, 1998 (as the same
may hereafter be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") pursuant to which the Lenders have made
commitments to make loans and the Issuing Bank has committed to issue Letters
of Credit to the Borrower;
WHEREAS, Culinary Solutions, Inc., a Subsidiary of the Borrower (
the "Subsidiary Guarantor") has executed and delivered a Subsidiary Guaranty
Agreement dated as of July 2, 1998 (the "Subsidiary Guaranty") pursuant to
which the Subsidiary Guarantor has agreed to guarantee all of the obligations
of the Borrower under the Credit Agreement and the other Credit Documents (as
defined in the Credit Agreement);
WHEREAS, the Borrower, the Subsidiary Guarantor and the
Additional Guarantor share an identity of interests as members of a
consolidated group of companies engaged in substantially similar businesses;
the Borrower provides certain centralized financial, accounting and
management services to the Additional Guarantor; and the making of the loans
will facilitate expansion and enhance the overall financial strength and
stability of the Borrower's corporate group, including the Additional
Guarantor;
WHEREAS, it is a condition subsequent to the Lenders' obligation
to make loans to the Borrower and the Issuing Bank's obligation to issue
letters of credit on behalf of the Borrower under the Credit Agreement that
the Additional Guarantor execute and deliver to the Agent this Supplement to
Guaranty Agreement, and the Additional Guarantor desires to execute and
deliver this Supplement to Guaranty Agreement to satisfy such condition
subsequent;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the loans to the Borrower and the Issuing Bank to
issue letters of credit on behalf of the Borrower under the Credit Agreement,
the Additional Guarantor hereby agrees as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein which
are used in the Subsidiary Guaranty are used herein with the meanings
specified for such terms in the Subsidiary Guaranty.
2. Additional Guarantor. The Additional Guarantor agrees that it shall be
and become a Guarantor for all purposes of the Subsidiary Guaranty and shall
be fully liable, jointly and severally thereunder to the Agent and other
Guaranteed Parties to the same extent and with the same effect as though the
Additional Guarantor had been a Guarantor originally executing and delivering
the Subsidiary Guaranty. Without limiting the foregoing, the Additional
Guarantor hereby jointly and severally (with respect to the guaranties made
by the Subsidiary Guarantor under the Subsidiary Guaranty), irrevocably and
unconditionally, guarantees the punctual payment when due, whether at stated
maturity by acceleration of otherwise, of the Borrowings and all other
Obligations (as defined in the Credit Agreement, and including all renewals,
extensions, modifications and refinancings thereof, now or hereafter
existing, whether for principal, interest, fees, expenses or otherwise, and
any and all expenses (including reasonable attorneys' fees actually incurred
and reasonable out-of-pocket expenses) incurred by the Agent and other
Guaranteed Parties in enforcing any rights under the Subsidiary Guaranty (as
supplemented hereby), subject, however, to the limitations expressly provided
in the Subsidiary Guaranty in Section 14 thereof. All references in the
Subsidiary Guaranty to the "Guarantor" shall be deemed to include and to
refer to the Additional Guarantor.
3. Governing Law; Appointment of Agent for Service of Process;
Submission to Jurisdiction; Waiver of Jury Trial.
(a) THIS SUPPLEMENT TO GUARANTY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
SUPPLEMENT TO GUARANTY AGREEMENT RELATED HERETO MAY BE BROUGHT IN THE
SUPERIOR COURT OF XXXXXX COUNTY OF THE STATE OF GEORGIA OR OF THE UNITED
STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND
DELIVERY OF THIS SUPPLEMENT TO GUARANTY AGREEMENT, THE ADDITIONAL GUARANTOR
HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING
ITS RIGHTS OR THE RIGHTS OF THE AGENT OR OTHER GUARANTEED PARTIES WITH
RESPECT TO THIS SUPPLEMENT TO GUARANTY AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE ADDITIONAL GUARANTOR HEREBY IRREVOCABLY DESIGNATES CSC
CORPORATION SERVICES OF ATLANTA, GEORGIA, AS THE DESIGNEE, APPOINTEE AND
AGENT OF THE ADDITIONAL GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF THE
ADDITIONAL GUARANTOR, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT TO GUARANTY AGREEMENT OR
ANY DOCUMENT RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED THIRTY
(30) DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS UNDERSTOOD THAT A COPY
OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL
AGENT AND BY THE SERVER OF PROCESS BY MAIL TO THE ADDITIONAL GUARANTOR AT ITS
ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF THE ADDITIONAL GUARANTOR TO
RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. THE ADDITIONAL GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS SUPPLEMENT
TO GUARANTY AGREEMENT OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
SUPPLEMENT TO GUARANTY AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER
ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Supplement to Guaranty to be duly executed and delivered under seal by its
duly authorized officers as of the date first above written.
Address for Notices: ADDITIONAL GUARANTOR:
By:
Title:
Attest:
Title:
[CORPORATE SEAL]
EXHIBIT D
CLOSING CERTIFICATE
The undersigned, being the SVP - FINANCE of XXXXXXXX HEALTH CARE,
INC., a Georgia corporation (the "Borrower"), hereby gives this certificate
to induce SUNTRUST BANK, ATLANTA, a Georgia banking corporation, and the
other Lenders party to the Credit Agreement described below (referred to
collectively as the "Lenders"), SUNTRUST BANK, ATLANTA, as the issuing bank
(the "Issuing Bank"), and SUNTRUST BANK, ATLANTA, as Agent (the "Agent") for
the Issuing Bank and the Lender, and WACHOVIA BANK, N.A. as Co-Agent (the
"Co-Agent") for the Issuing Bank and the Lender, to consummate certain
financial accommodations with the Borrower pursuant to the terms of the
Amended and Restated Credit Agreement dated as of July 2, 1998 by and among
the Borrower, Lenders, the Issuing Bank, the Agent and the Co-Agent (the
"Credit Agreement"). Capitalized terms used herein and not defined herein
have the same meanings assigned to them in the Credit Agreement:
The undersigned hereby certifies to the Agent, the Co-Agent, the
Issuing Bank and the Lenders that:
1. In his aforesaid capacity as the SVP FINANCE of the
Borrower, he has knowledge of the business and financial affairs of the
Borrower sufficient to issue this certificate and is authorized and empowered
to issue this certificate for and on behalf of the Borrower.
2. All representations and warranties contained in Article V of the Credit
Agreement are true and correct in all material respects on and as of the date
hereof.
3. After giving effect to the initial Loans to be made to, or initial
Letters of Credit to be issued on behalf of, the Borrower pursuant to the
Credit Agreement on the Closing Date, no Default or Event of Default has
occurred and is continuing.
4. Since the date of the unaudited proforma financial statements of the
Consolidated Companies described in Section 5.15 of the Credit Agreement,
there has been no change which has had or could reasonably be expected to
have a Materially Adverse Effect.
5. The Advances to be made or Letters of Credit issued on the date hereof
are being used solely for the purposes provided in the Credit Agreement, and
such Advances and Letters of Credit and use of proceeds thereof will not
contravene, violate or conflict with, or involve the Agent, the Issuing Bank
or any Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority, applicable
to the Borrower.
6. The conditions precedent set forth in Sections 4.01 and 4.02 of the
Credit Agreement have been or will be satisfied (or have been waived pursuant
to the terms of the Credit Agreement) prior to or concurrently with the
making of the initial Loans or issuance of initial Letters of Credit under
the Credit Agreement.
7. The execution, delivery and performance by the Credit Parties of the
Credit Documents will not violate any Requirement of Law or cause a breach or
default under any of their respective Contractual Obligations.
8. Each of the Credit Parties has the corporate power and authority to
make, deliver and perform the Credit Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery and
performance of such Credit Documents. No consents or authorization of, or
filing with, any Person (including, without limitation, any governmental
authority), is required in connection with the execution, delivery or
performance by any Credit Party, or the validity or enforceability against
any Credit Party, of the Credit Documents, other than such consents,
authorizations or filings which have been made or obtained.
IN WITNESS WHEREOF, the undersigned has executed this certificate in
his aforesaid capacity as of this 2nd day of July, 1998.
By: /S/X. X. Xxxxxxx
Name:K. Xxxxx Xxxxxxx
Title: Senior Vice President - Finance
Exhibit E
---------
Form of Opinion of Powell, Goldstein, Xxxxxx & Xxxxxx, LLP
July 2, 1998
To: Each of the Lenders who are parties to the Credit Agreement referenced
below and each assignee thereof that becomes a "Lender" as provided
therein, SunTrust Bank, Atlanta, as Swing Line Lender, Issuing Bank and
Agent, and Wachovia Bank, N.A., as Co-Agent
Re: Amended and Restated Credit Agreement dated as of July 2, 1998
(the "Credit Agreement"), among Xxxxxxxx Health Care, Inc., each
of the Lenders listed on the signature pages thereto, SunTrust
Bank, Atlanta, as Swing Line Lender , Issuing Bank and Agent, and
Wachovia Bank, N.A., as Co-Agent
Ladies and Gentlemen:
This opinion is furnished pursuant to Section 4.01(i) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth or referred to in the Credit
Agreement, unless otherwise defined herein.
We have acted as counsel for Xxxxxxxx Health Care, Inc., a Georgia
corporation (the "Borrower"), and Culinary Solutions, Inc., a Georgia
corporation (the "Guarantor"; and together with the Borrower, the "Credit
Parties"), in connection with the preparation, negotiation, execution and
delivery of the following documents (the "Credit Documents"):
1. The Credit Agreement;
2. The Revolving Credit Notes;
3. The Swing Line Note; and
4. The Guaranty Agreement.
In connection with our opinion we have examined the Credit Documents
and the corporate proceedings of the Boards of Directors of the Credit
Parties. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted
such other investigations of fact and law as we have deemed necessary or
advisable for purposes of this opinion.
This opinion letter is limited by, and is rendered in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee of the Corporate and Banking Law Section of the State Bar
of Georgia ("Interpretive Standards"), which Interpretative Standards are
incorporated in this opinion letter by this reference.
We have assumed the genuineness of all signatures (other than those on
behalf of the Credit Parties) on, and authenticity of, all documents
submitted to as originals and the conformity to original documents of all
documents submitted to us as copies.
With respect to any element of mutuality which may be required in order
to support the enforceability of the Credit Documents, we have assumed that
all parties thereto other than the Credit Parties (the "Other Parties") have
all requisite power and authority to enter into and perform their respective
obligations under the Credit Agreement and the other Credit Documents to
which they are parties, that the Credit Agreement and such other Credit
Documents have been duly authorized, executed and delivered by the Other
Parties, and that the Credit Agreement and such other Credit Documents
constitute the legal, valid and binding obligations of the Other Parties.
Based on the foregoing, and subject to the qualifications hereunder set
forth, we are of the opinion that:
1. Each of the Credit Parties is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation.
2. Each of the Credit Parties has the corporate power to own
and operate its property and to conduct its business as now conducted and to
make, deliver and perform the Credit Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery and
performance of such Credit Documents. Each of the Credit Parties has duly
authorized, executed and delivered each Credit Document to which it is a
party.
3. No consent, approval or authorization of, or registration,
declaration or filing with any governmental authority of the United States of
America or the State of Georgia is required in connection with the execution,
delivery, performance, validity or enforceability of the Credit Documents.
4. (a) The execution, delivery and performance by each of
the Credit Parties of the Credit Documents to which it is a party do not and
will not violate (i) the articles of incorporation of such Credit Party,
(ii) any existing Requirement of Law (other than any determination of an
arbitrator or a court or other governmental authority) of the United States
of America or the State of Georgia applicable to such Credit Party, or
(iii) insofar as known to us, any determination of an arbitrator or a court
or other governmental authority applicable to such Credit Party.
(b) The execution, delivery and performance by the Borrower of the
Credit Documents to which it is a party do not and will not result in a
breach of or default under any material written agreements or the creation or
imposition of a contractual lien or security interest in, on or against any
of its properties under any material written agreements. With your
permission we have assumed the term "material written agreements" as used in
the preceding sentence includes only the Sharing Agreements.
5. Each of the Credit Documents constitutes the legal, valid
and binding obligation of each of the Credit Parties that is a party thereto,
enforceable against each such Credit Party in accordance with its terms. The
provisions of the Credit Documents with respect to payment of interest, fees,
costs and other charges for the use of money deemed to be interest under
Georgia law (collectively "Interest Charges") do no violate the interest and
usury laws as in effect in the State of Georgia.
6. None of the Credit Parties is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
7. The making of any Loans and the application of the proceeds
thereof as provided in the Credit Agreement do not violate Regulation G, T, U
or X of the Board of Governors of the Federal Reserve System.
Our opinions set forth above are subject to the following
qualifications:
A. Our opinions are limited to the laws of the United States of
America and the State of Georgia.
B. With respect to the opinions contained in paragraph 1 above, we
have not obtained tax clearance certificates from the taxing authorities of
the relevant jurisdictions.
C. With respect to the opinion expressed in paragraph 5 above, we
have assumed that:
i) the Interest Charges have been or will be applied for the
purposes described in the Credit Documents; and
ii) all such Interest Charges have been or will be applied for
purposes described in the Credit Documents;
iii) interest will not be charged on overdue interest, in
violation of O.C.G.A. Section 7-4-17; and
iv) the Interest Charges shall not exceed five percent (5%) per
month in violation of O.C.G.A. Section 7-4-18;
Based upon the limitations and qualifications set forth above, we
confirm to you that:
i) Except for the claims described in Schedule 5.05 to the
Credit Agreement, to our knowledge (but without independent investigation),
no litigation, investigation or proceeding of or before any court, tribunal,
arbitrator or governmental authority is pending or overtly threatened by a
written communication by or against any of the Credit Parties or against any
of their respective properties or revenues or with respect to the Credit
Documents or any of the transactions contemplated thereby which would have a
Materially Adverse Effect.
ii) Each of the Credit Parties is qualified to transact
business as a foreign corporation in the states set forth in Exhibit A
hereto, except as noted to the contrary hereinbelow. The foregoing statement
is based solely upon certificates provided by agencies of those states,
copies of which Borrower has delivered to you on the date hereof, and is
limited to the meaning ascribed to such certificates by each applicable state
agency. In this connection, we draw to your attention that we were unable to
obtain certificates of authority for the Borrower from the District of
Columbia and Arkansas, due to the apparent failure of the Borrower to file
its annual reports and/or pay any applicable franchise taxes in those
jurisdictions. We have been advised that curative measures are being taken
by the Borrower to bring itself into good standing in those two jurisdictions.
This opinion has been delivered solely for the benefit of the Lenders,
the Issuing Bank, the Agent and the Co-Agent, and their permitted successors
and assigns under the Credit Agreement, and may not be relied upon by any
other person or entity or for any other purpose without the express written
permission of the undersigned.
Very truly yours,
/s/ POWELL, GOLDSTEIN, XXXXXX & XXXXXX LLP
EXHIBIT A
Xxxxxxxx Health Care, Inc. (GA)
Foreign Qualifications:
Alabama
Arizona
Arkansas*
California
Colorado
Connecticut
Delaware
District of Columbia*
Florida
Illinois
Indiana
Iowa
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Mississippi
Missouri
New Hampshire
New Jersey
New York
North Carolina
Ohio (d/b/a Xxxxxxxx Food and Nutrition Services)
Oklahoma
Pennsylvania
South Carolina
Tennessee
Texas
Vermont
Virginia
West Virginia
Culinary Solutions, Inc. (GA)
Foreign Qualifications:
Maryland
* Not in good standing.
EXHIBIT_F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
ASSIGNMENT AND ACCEPTANCE AGREEMENT (the "Assignment Agreement")
dated as of _____________, 19__ between
______________________________________________ ("Assignor") and
__________________________________ ("Assignee"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Assignor is a party to an Amended and Restated Credit
Agreement, dated as of July 2, 1998 (as amended to the date hereof, the
"Credit Agreement"), among Xxxxxxxx Health Care, Inc. (the "Borrower"), the
financial institutions from time to time party thereto (including Assignor,
the "Lenders") SunTrust Bank, Atlanta, as the Issuing Bank (the "Issuing
Bank"), SunTrust Bank, Atlanta, as Agent (the "Agent") for the Issuing Bank
and the Lenders, and Wachovia Bank, N.A., as Co-Agent ("Co-Agent") for the
Issuing Bank and Lenders (the "Co-Agent");
WHEREAS, Assignor has a Revolving Loan Commitment of $___________
under the Credit Agreement pursuant to which it has made outstanding Advances
of $_____________; and
WHEREAS, Assignor and Assignee wish Assignor to assign to
Assignee its rights under the Credit Agreement with respect to all or a
portion of its Commitment and its outstanding Advances;
WHEREAS, Assignor and Assignee wish Assignee to assume the
obligations of Assignor under the Credit Agreement to the extent of the
rights so assigned;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns to Assignee, without
recourse, or representation or warranty (other than expressly provided
herein) and subject to Section 4(b) hereof, ___% as the "Assignee's Share"
("Assignee's Share") of all of Assignor's rights, title and interest arising
under the Credit Agreement relating to Assignor's Commitment, including with
respect to Assignee's Share of the Advances heretofore made by the Assignor
under the Credit Agreement. The dollar amount of Assignee's Share of
Assignor's Commitment is $__________, the dollar amount of Assignee's Share
of Assignor's outstanding Advances pursuant thereto is $__________.
2. Assumption. Assignee hereby assumes from Assignor all of
Assignor's obligations arising under the Credit Agreement relating to
Assignee's Share of Assignor's Commitment and of the Advances. It is the
intent of the parties hereto that Assignor shall be released from all of its
obligations under the Credit Agreement relating to Assignee's Share.
3. Assignments; Participations. Assignee may not assign all
or any part of the rights granted to it hereunder. Assignee may sell or
grant participations in all or any part of the rights granted to it hereunder
in accordance with the provisions of Section 10.06 of the Credit Agreement.
4. Payment of Interest and Fees to Assignee.
(a) As of the date hereof interest is payable by the
Borrower in respect of Assignee's Share of the Eurodollar Advances at a rate
equal to ___% per annum above LIBOR for Revolving Loans and a Commitment Fee
equal to ___% per annum on the Assignee's Share of the average daily unused
portion of the Commitments.
(b) Notwithstanding anything to the contrary contained in
this Assignment Agreement, if and when Assignor receives or collects any
payment of interest on any Advance attributable to Assignee's Share or any
payment of the Commitment Fee attributable to Assignee's Share which, in any
such case, are required to be paid to Assignee pursuant to clause (a) above,
Assignor shall distribute to Assignee such payment but only to the extent
such interest or fee accrued after the Assignment Effective Date (as
hereinafter defined).
(c) Notwithstanding anything to the contrary contained in
this Assignment Agreement, if and when Assignee receives or collects any
payment of interest on any Advance or any payment of the Commitment Fee
which, in any such case, is required to be paid to Assignor pursuant to
clause (a) above, Assignee shall distribute to Assignor such payment.
5. Payments on Assignment Effective Date. In consideration of
the assignment by Assignor to Assignee of Assignee's Share of Assignor's
Revolving Loan Commitment, Term Loan and Advances as set forth above,
Assignee agrees to pay to Assignor on or prior to the Assignment Effective
Date an amount specified by Assignor in writing on or prior to the Assignment
Effective Date which represents Assignee's Share of the principal amount of
the respective Advances made by Assignor pursuant to the Credit Agreement and
outstanding on the Assignment Effective Date.
6. Effectiveness. (a) This Assignment Agreement shall become
effective on the date (the "Assignment Effective Date") (which is at least
five days after the date hereof) on which (i) Assignor and Assignee shall
have signed a copy hereof (whether the same or different copies) and, in the
case of Assignee, shall have delivered the same to Assignor, (ii) the
Borrower shall have consented hereto, (iii) a copy of the fully executed
Assignment, a fee of $2,500 and the Note evidencing the Commitment and
assigned hereby shall have been delivered to the Agent, and (iv) Assignee
shall have paid to Assignor the amount set forth in Section 5.
(b) It is agreed that all interest on any Advance
attributable to Assignee's Share and all Commitment Fees attributable to
Assignee's Share, which, in each case, accrues on and after the Assignment
Effective Date shall be paid directly to the Assignee in accordance with the
Credit Agreement.
7. Amendment of Credit Agreement. On the Assignment Effective
Date the Credit Agreement shall be amended by deeming the signature of
Assignee herein as a signature to the Credit Agreement. The Assignee shall
be deemed a "Lender" for all purposes under the Credit Agreement and shall be
subject to and shall benefit from all of the rights and obligations of a
Lender under the Credit Agreement. The address of the Assignee for notice
purposes shall be as set forth below, and the Credit Agreement shall be
amended by deeming such signature page and address to be included thereon.
Without limiting the generality of the foregoing, Assignee agrees that it
will perform its obligations as a Lender under the Credit Agreement as
required by the terms thereof and Assignee appoints and authorizes the Agent
to take such actions as Agent on its behalf and exercise such powers under
the Credit Agreement and the other loan documents as are delegated to the
Agent by the terms of the Credit Agreement and the other credit documents,
together with such powers as are reasonably incidental thereto.
8. Representations and Warranties. Each of the Assignor and
the Assignee represents and warrants to the other party as follows:
(a) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment Agreement and to
fulfill its obligations under, and to consummate the transactions
contemplated by, this Assignment Agreement;
(b) the making and performance by it of this Assignment
Agreement and all documents required to be executed and delivered by it
hereunder do not and will not violate any law or regulation of the
jurisdiction of its incorporation or any other law or regulation applicable
to it;
(c) this Assignment Agreement has been duly executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms; and
(d) all consents, licenses, approvals, authorizations,
exemptions, registrations, filings, opinions and declarations from or with
any agency, department, administrative authority, statutory corporation or
judicial entity necessary for the validity or enforceability of its
obligations under this Assignment Agreement have been obtained, and no
governmental authorizations other than any already obtained are required in
connection with its execution, delivery and performance of this Assignment
Agreement.
9. Expenses. The Assignor and the Assignee agree that each
party shall bear its own expenses in connection with the preparation and
execution of this Assignment Agreement.
10. Miscellaneous. (a) Assignor shall not be responsible to
Assignee for the execution (by any party other than the Assignor),
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of the Credit Agreement, the Note or the Guaranty Agreement or
for any representations, warranties, recitals or statements made therein or
in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents made or furnished
or made available by Assignor to Assignee or by or on behalf of the Borrower
or any Guarantor to Assignor or Assignee in connection with the Credit
Agreement, the Note or the Guaranty Agreement and the transactions
contemplated thereby. Assignor shall not be required to ascertain or inquire
as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in the Credit Agreement, the
Note or the Guaranty Agreement or as to the use of the proceeds of the
Advances or as to the existence or possible existence of any event which
constitutes an Event of Default or which with the giving of notice or the
passage of time or both would constitute an Event of Default.
(b) Assignee represents and warrants that it has made its
own independent investigation of the financial condition and affairs of the
Borrower and each Guarantor in connection with the making of the Advances and
the assignment of Assignee's Share of Assignor's Commitments and of
Assignor's Advances to Assignee hereunder and has made and shall continue to
make its own appraisal of the creditworthiness of the Borrower and each
Guarantor. Assignor shall have no duty or responsibility either initially or
on a continuing basis to make any such investigation or any such appraisal on
behalf of Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its possession before
the making of the Advances or at any time or times thereafter and shall
further have no responsibility with respect to the accuracy of, or the
completeness of, any information provided to Assignee, whether by Assignor or
by or on behalf of either the Borrower or any Guarantor.
(c) THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS
ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA.
(d) No term or provision of this Assignment Agreement may
be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by both parties.
(e) This Assignment Agreement may be executed in one or
more counterparts, each of which shall be an original but all of which, taken
together, shall constitute one and the same instrument.
(f) The Assignor may at any time or from time to time
grant to others assignments or participations in its Commitments or the
Advances but not in the portions thereof assigned to Assignee pursuant to
this Assignment Agreement. The Assignor represents and warrants that it has
not at any time prior to the Assignment Effective Date encumbered or assigned
the portion of its Commitments or Advances being assigned hereunder.
(g) All payments hereunder or in connection herewith
shall be made in Dollars and in immediately available funds, if payable to
the Assignor, to the account of the Assignor at its address as designated in
the Credit Agreement, and, if payable to the Assignee, to the account of the
Assignee's address, as designated on the signature page hereof.
(h) This Assignment Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns. Neither of the parties hereto may assign or transfer any of its
rights or obligations under this Assignment Agreement without the prior
consent of the other party.
(i) All representations and warranties made herein and
indemnities provided for herein shall survive the consummation of the
transaction contemplated hereby.
(j) The Assignee acknowledges receipt of copies of the
documents received in connection with the transactions contemplated by the
Credit Agreement, the Guaranty Agreement and this Assignment Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement as of the date first above written.
[NAME OF ASSIGNOR]
By:
Title:
Assignee's Share of [NAME OF ASSIGNEE]
Revolving Loan Commitment:
$ By:
Title:
Address:
Tel. No:
Fax No:
CONSENTED TO AS OF THE
DATE SET FORTH ABOVE:
XXXXXXXX HEALTH CARE, INC.
By:
Title:
