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TYPE>EX 10.36
SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
DATED AS OF OCTOBER 28, 1999
BY AND AMONG
GLOBAL VACATION GROUP, INC.,
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
BNY CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND BOOK MANAGER
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GLOBAL VACATION GROUP, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION 5
SECTION 1.1 DEFINITIONS...............................................................................5
SECTION 1.2. ACCOUNTING TERMS........................................................................25
SECTION 1.3. RULES OF INTERPRETATION.................................................................25
ARTICLE 2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT 26
SECTION 2.1. REVOLVING LOANS.........................................................................26
SECTION 2.2. PROCEDURE FOR BORROWING.................................................................26
SECTION 2.3. TERMINATION OR REDUCTION OF COMMITMENTS.................................................27
SECTION 2.4. PREPAYMENTS OF REVOLVING LOANS..........................................................29
SECTION 2.5. LETTERS OF CREDIT.......................................................................30
SECTION 2.6. PAYMENTS; PRO RATA TREATMENT AND SHARING OF SET-OFFS....................................32
SECTION 2.7. CASH COLLATERAL ACCOUNT.................................................................33
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC. 34
SECTION 3.1. INTEREST RATE AND PAYMENT DATES.........................................................34
SECTION 3.2. FEES....................................................................................35
SECTION 3.3. CONVERSIONS.............................................................................35
SECTION 3.4. CONCERNING INTEREST PERIODS.............................................................36
SECTION 3.5. FUNDING LOSS............................................................................36
SECTION 3.6. INCREASED COSTS; ILLEGALITY, ETC........................................................36
SECTION 3.7. TAXES...................................................................................38
SECTION 3.8. REGISTER................................................................................38
ARTICLE 4. REPRESENTATIONS AND WARRANTIES 39
SECTION 4.1. ORGANIZATION AND POWER..................................................................39
SECTION 4.2. AUTHORIZATION; ENFORCEABILITY...........................................................39
SECTION 4.3. APPROVALS; NO CONFLICTS.................................................................39
SECTION 4.4. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.........................................39
SECTION 4.5. PROPERTIES, ETC.........................................................................40
SECTION 4.6. LITIGATION..............................................................................40
SECTION 4.7. ENVIRONMENTAL MATTERS...................................................................40
SECTION 4.8. COMPLIANCE WITH LAWS AND AGREEMENTS; NO DEFAULT.........................................41
SECTION 4.9. INVESTMENT COMPANIES AND OTHER REGULATED ENTITIES.......................................41
SECTION 4.10. FEDERAL RESERVE REGULATIONS............................................................41
SECTION 4.11. ERISA..................................................................................41
SECTION 4.12. TAXES..................................................................................41
SECTION 4.13. SUBSIDIARIES...........................................................................41
SECTION 4.14. ABSENCE OF CERTAIN RESTRICTIONS........................................................42
SECTION 4.15. LABOR RELATIONS........................................................................42
SECTION 4.16. INSURANCE..............................................................................42
SECTION 4.17. NO MISREPRESENTATION...................................................................42
SECTION 4.18. FINANCIAL CONDITION....................................................................42
SECTION 4.19. YEAR 2000..............................................................................42
SECTION 4.20. MATERIAL AGREEMENTS....................................................................43
SECTION 4.21. ACCOUNTS...............................................................................43
ARTICLE 5. CONDITIONS TO EFFECTIVENESS 43
SECTION 5.1. EVIDENCE OF ACTION......................................................................43
SECTION 5.2. THIS AGREEMENT..........................................................................43
SECTION 5.3. NOTES...................................................................................43
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SECTION 5.4. OPINION OF COUNSEL TO THE LOAN PARTIES..................................................43
SECTION 5.5. PERFECTION CERTIFICATE..................................................................43
SECTION 5.6. ABSENCE OF MATERIAL ADVERSE CHANGE......................................................43
SECTION 5.7. OFFICER'S CERTIFICATE...................................................................44
SECTION 5.8. AMENDMENT TO SECURITY AGREEMENT.........................................................44
SECTION 5.8. FEES AND EXPENSES.......................................................................44
SECTION 5.9. OTHER DOCUMENTS.........................................................................44
ARTICLE 6. CONDITIONS TO EACH EXTENSION OF CREDIT 44
SECTION 6.1. COMPLIANCE..............................................................................44
SECTION 6.2. CREDIT REQUEST..........................................................................44
SECTION 6.3. LAW.....................................................................................44
ARTICLE 7. AFFIRMATIVE COVENANTS 44
SECTION 7.1. FINANCIAL STATEMENTS AND INFORMATION....................................................45
SECTION 7.2. NOTICE OF MATERIAL EVENTS...............................................................46
SECTION 7.3. EXISTENCE; CONDUCT OF BUSINESS..........................................................47
SECTION 7.4. PAYMENT OF OBLIGATIONS..................................................................47
SECTION 7.5. MAINTENANCE OF PROPERTIES...............................................................47
SECTION 7.6. INSURANCE...............................................................................47
SECTION 7.7. BOOKS AND RECORDS; INSPECTION RIGHTS....................................................47
SECTION 7.8. COMPLIANCE WITH LAWS....................................................................47
SECTION 7.9. ADDITIONAL SUBSIDIARIES.................................................................47
SECTION 7.10. ADDITIONAL COLLATERAL..................................................................48
SECTION 7.11. HEDGING AGREEMENTS.....................................................................48
SECTION 7.12. CONTROL AGREEMENTS.....................................................................48
SECTION 7.13. POST CLOSING DELIVERIES................................................................49
ARTICLE 8. NEGATIVE COVENANTS 49
SECTION 8.1. INDEBTEDNESS............................................................................49
SECTION 8.2. NEGATIVE PLEDGE.........................................................................50
SECTION 8.3. FUNDAMENTAL CHANGES.....................................................................51
SECTION 8.4. INVESTMENTS, LOANS, ADVANCES AND GUARANTEES.............................................51
SECTION 8.5. ACQUISITIONS............................................................................52
SECTION 8.6. DISPOSITIONS............................................................................53
SECTION 8.7. RESTRICTED PAYMENTS.....................................................................53
SECTION 8.8. HEDGING AGREEMENTS......................................................................54
SECTION 8.9. SALE AND LEASE-BACK TRANSACTIONS........................................................54
SECTION 8.10. LINES OF BUSINESS......................................................................54
SECTION 8.11. TRANSACTIONS WITH AFFILIATES...........................................................54
SECTION 8.12. USE OF PROCEEDS........................................................................54
SECTION 8.13. RESTRICTIVE AGREEMENTS.................................................................54
SECTION 8.14. FINANCIAL COVENANTS....................................................................55
SECTION 8.15. ACCOUNTS...............................................................................57
ARTICLE 9. DEFAULTS 57
SECTION 9.1. EVENTS OF DEFAULT.......................................................................57
SECTION 9.2. CONTRACT REMEDIES.......................................................................58
ARTICLE 10. THE ADMINISTRATIVE AGENT 59
SECTION 10.1. APPOINTMENT............................................................................59
SECTION 10.2. INDIVIDUAL CAPACITY....................................................................59
SECTION 10.3. EXCULPATORY PROVISIONS.................................................................59
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SECTION 10.4. RELIANCE BY ADMINISTRATIVE AGENT.......................................................60
SECTION 10.5. RELIANCE BY ADMINISTRATIVE AGENT.......................................................60
SECTION 10.6. RESIGNATION; SUCCESSOR ADMINISTRATIVE AGENT............................................60
SECTION 10.7. NON-RELIANCE ON OTHER CREDIT PARTIES...................................................60
ARTICLE 11. OTHER PROVISIONS 61
SECTION 11.1. AMENDMENTS AND WAIVERS.................................................................61
SECTION 11.2. NOTICES................................................................................62
SECTION 11.3. SURVIVAL...............................................................................62
SECTION 11.4. EXPENSES; INDEMNITY....................................................................62
SECTION 11.5. SUCCESSORS AND ASSIGNS.................................................................63
SECTION 11.6. COUNTERPARTS; INTEGRATION..............................................................64
SECTION 11.7. SEVERABILITY...........................................................................64
SECTION 11.8. GOVERNING LAW..........................................................................64
SECTION 11.9. JURISDICTION; SERVICE OF PROCESS.......................................................64
SECTION 11.10. WAIVER OF TRIAL BY JURY...............................................................65
SECTION 11.11. SAVINGS CLAUSE........................................................................65
EXHIBITS:
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Exhibit A Form of Note
Exhibit B Form of Credit Request
Exhibit C Form of Notice of Conversion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance Agreement
Exhibit F Form of Intercompany Subordination Agreement
SCHEDULES:
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Schedule 4.3 Exceptions to Section 4.3 (Consents and Approvals)
Schedule 4.6 Litigation
Schedule 4.7 Environmental Matters
Schedule 4.13 Subsidiaries; Capitalization
Schedule 4.16 Insurance
Schedule 4.21 List of Accounts
Schedule 8.1 Existing Indebtedness
Schedule 8.2 Existing Liens
Schedule 8.4 Existing Investments
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 28,
1999, by and among Global Vacation Group, Inc., a New York corporation (the
"BORROWER"), the several banks and other parties from time to time parties
hereto (the "LENDERS") and THE BANK OF NEW YORK ("BNY"), as administrative
agent for each of the other Credit Parties hereto (in such capacity, the
"ADMINISTRATIVE AGENT").
RECITALS
A. On February 19, 1999, the Borrower, the lenders party thereto
and the Administrative Agent entered into a First Amended and Restated
Credit Agreement (as amended up to, but excluding, the Second Restatement
Date, the "EXISTING CREDIT AGREEMENT") pursuant to which the Lenders agreed
to make Revolving Loans and Acquisition Loans to the Borrower and the Issuer
agreed to issue Letters of Credit for the account of the Borrower.
B. Immediately prior to the effectiveness of this Agreement, (i)
the Aggregate Revolving Commitment under the Existing Credit Agreement is
$10,000,000, (ii) the Aggregate Acquisition Loan Commitment under the
Existing Credit Agreement is $35,000,000, and (iii) the aggregate
outstanding principal balance of the Acquisition Loans under the Existing
Credit Agreement (the "EXISTING ACQUISITION LOANS") is approximately
$35,000,000.
C. The Borrower, the Lenders and the Administrative Agent desire
to amend and restate the Existing Credit Agreement upon the terms, and
subject to the conditions, contained herein.
D. On the Second Restatement Date (as defined below), (i) the
Acquisition Loan Commitment of each Lender is to be combined with such
Lender's Revolving Commitment, (ii) the outstanding Acquisition Loans of
each Lender are to be converted to Revolving Loans and (iii) the Aggregate
Revolving Commitment (after the combination referred to above) is to be
permanently reduced to $41,000,000.
E. For convenience, this Agreement is dated as of October 28, 1999
(the "SECOND RESTATEMENT DATE") and references to certain matters related to
the period prior hereto have been deleted.
In consideration of the Recitals, the terms and conditions herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION
SECTION 1.1 DEFINITIONS
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following
meanings:
"ABR ADVANCES" means the Revolving Loans (or any portions thereof),
at such time as they (or such portions) are made and/or being maintained at a
rate of interest based upon the Alternate Base Rate.
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"ACCOUNTANTS" means Xxxxxx Xxxxxxxx, LLP (or any successor thereto),
or such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the
Administrative Agent.
"ACQUISITION" has the meaning set forth in Section 8.5.
"ACQUISITION CONSIDERATION" has the meaning set forth in Section
8.5(c).
"ADDITIONAL PLEDGE AGREEMENT" has the meaning set forth in Section
7.9(b).
"ADVANCE" means an ABR Advance or a Eurodollar Advance.
"AFFILIATE" means as to any Person (i) any other Person at the time
directly or indirectly controlling, controlled by or under direct or
indirect common control with such Person, (ii) any other Person of which
such Person at the time owns, or has the right to acquire, directly or
indirectly, ten percent (10%) or more on a consolidated basis of the equity
or beneficial interest of such Person, (iii) any other Person which at the
time owns, or has the right to acquire, directly or indirectly, ten percent
(10%) or more of any class of the capital stock or beneficial interest of
such Person, (iv) any executive officer, director or trustee of such Person,
and (v) when used with respect to an individual, a spouse, any ancestor or
descendant, or any other relative (by blood, adoption or marriage), within
the third degree of such individual, provided, however, that for purposes of
this Agreement, Persons in which Xxxxxx holds an interest which are not
engaged in the Line of Business shall not be considered Affiliates.
"AGGREGATE REVOLVING COMMITMENT" means, at any time, the sum at such
time of the Revolving Commitments of all Lenders. As of the Second
Restatement Date and after giving effect to the combination of the Revolving
Commitments and the Acquisition Loan Commitments of the Lenders and the
reduction described in Recital D, the Aggregate Revolving Commitment is
$41,000,000.
"AGGREGATE REVOLVING EXPOSURE" means, at any time, the aggregate sum
at such time of the Revolving Exposures of all Lenders.
"AGREEMENT" means this Second Amended and Restated Credit Agreement.
"ALTERNATE BASE RATE" means on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Effective Rate in effect on
such date plus 1/2 of 1% or (ii) the Prime Rate in effect on such date.
"AMENDMENT DOCUMENTS" means, collectively, this Agreement, the Notes
and Amendment No. 1 to the Security Agreement.
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"APPLICABLE MARGIN" means:
(a) During the period from September 30, 1999 through
September 30, 2000, (i) with respect to ABR Advances, 2.25%, (ii) with
respect to Eurodollar Advances and Letter of Credit Fees, 3.50% and
(iii) with respect to the Commitment Fee, 1.00%.
(b) For the period on and after October 1, 2000, at all times
during the applicable periods set forth below: (i) with respect to ABR
Advances, the percentage set forth below under the heading "ABR
MARGIN" and adjacent to such period, (ii) with respect to Eurodollar
Advances and Letter of Credit Fees, the percentage set forth below
under the heading "EURODOLLAR MARGIN" and adjacent to such period and
(iii) with respect to the Commitment Fee, the percentage set forth
below under the heading "FEE MARGIN" and adjacent to such period:
=================================================================================================
WHEN THE LEVERAGE
RATIO IS GREATER
THAN OR EQUAL TO
AND LESS THAN ABR MARGIN EURODOLLAR AND FEE
LC FEE MARGIN MARGIN
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2.75:1.00 1.500% 2.500% 0.750%
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2.25:1.00 2.75:1.00 1.250% 2.250% 0.500%
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2.25:1.00 1.000% 2.000% 0.500%
=================================================================================================
Changes in the Applicable Margin resulting on and after October 1,
2000 from a change in the Leverage Ratio shall be based upon the Compliance
Certificate most recently delivered under Section 7.1(c) and shall become
effective on the day such Compliance Certificate is delivered to the
Administrative Agent. Notwithstanding anything to the contrary in this
definition, if the Borrower shall fail to deliver to the Administrative
Agent such a Compliance Certificate on or prior to any date required hereby,
the Leverage Ratio shall be deemed to be 2.75:1.00 from and including such
date to the date of delivery to the Administrative Agent of such Compliance
Certificate.
"APPLICABLE PROCEEDS" means any and all proceeds of casualty insurance
or condemnation held by the Administrative Agent pursuant to the Loan
Documents in connection with a casualty or condemnation event for which the
conditions for use thereof by the Borrower or any Subsidiary, as set forth
in the Loan Documents, shall not have been satisfied.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an assignment and
acceptance agreement substantially in the form of Exhibit E.
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"BOARD" means the Board of Governors of the Federal Reserve System of
the United States.
"BORROWER OBLIGATIONS" means, collectively, (i) all of the obligations
and liabilities of the Borrower under the Loan Documents, and (ii) all of
the obligations and liabilities of the Borrower under each Secured Hedging
Agreement, in each case whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired, and whether before or after
the occurrence of any Event of Default under Section 9.1(h) or (i) and
including any obligation or liability in respect of any breach of any
representation or warranty and all post-petition interest and funding
losses, whether or not allowed as a claim in any proceeding arising in
connection with such an event.
"BORROWING DATE" means any Business Day on which (i) the Lenders make
Revolving Loans or (ii) the Issuer issues a Letter of Credit.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which commercial banks located in New York City are authorized or
required by law or other governmental action to be closed, provided that
when used in connection with a Eurodollar Advance, the term shall also
exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, the sum of the aggregate
of all expenditures (whether paid in cash or other consideration or accrued
as a liability) by the Borrower and the Subsidiaries on a consolidated basis
in accordance with GAAP during such period for fixed or capital assets
(excluding any capitalized interest and any such asset acquired in
connection with normal replacement and maintenance programs properly charged
to current operations and excluding any replacement assets acquired with the
proceeds of insurance).
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal property,
or a combination thereof, (a) which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP, or (b) which
lease does not qualify as a Tax Operating Lease. For purposes of this
definition, "TAX OPERATING LEASE" means any "synthetic lease", and any other
lease (i) that is treated as a lease for purposes of the Code, and (ii) the
lessor under which is treated as the owner of the assets subject to the
lease for purposes of the Code.
"CAPITAL STOCK" means, as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other
equity.
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"CASH COLLATERAL" has the meaning set forth in Section 2.7.
"CASH COLLATERAL ACCOUNT" has the meaning set forth in Section 2.7.
"CASH EQUIVALENTS" means Dollar denominated investments in (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in full support thereof)
having maturities of not more than one year from the date of acquisition,
(ii) time deposits, certificates of deposit and bankers acceptances maturing
within 180 days from the date of acquisition thereof issued or guaranteed by
or placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank having a combined capital surplus and
undivided profits of not less than $100,000,000 and whose (or whose parent
company's) unsecured non-credit supported short-term debt rating at the time
of such acquisition is the highest credit rating obtainable from S&P and
Xxxxx'x or, if rated by only one such rating agency, the highest credit
rating obtainable from such rating agency, (iii) commercial paper maturing
within 90 days from the date of acquisition thereof and having, at such date
of acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x, (iv) marketable direct obligations issued by any state of the
United States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Xxxxx'x, (v) normal business
banking accounts, and (vi) investments in money market funds substantially
all the assets of which are comprised of securities of the types described
in clauses (i) through (iv) above.
"CHANGE IN CONTROL" means the occurrence of one or more of the
following events:
(a) except in connection with one or more Equity
Issuances after the Second Restatement Date, the acquisition directly or
indirectly by any Person, or two or more persons acting in concert, other
than Xxxxxx, of beneficial ownership of a percentage of the outstanding
voting stock of the Borrower that exceeds in the aggregate the percentage of
such voting stock then beneficially owned or controlled, directly or
indirectly, by Xxxxxx;
(b) the failure of Xxxxxx (and/or its Affiliates) to own
and control, directly or indirectly (free and clear of all Liens), at any
time (i) all of the Capital Stock of the Borrower that is owned and
controlled by Xxxxxx on the Second Restatement Date (approximately 9,000,000
shares of common stock), as the same may be adjusted to reflect stock
splits, reverse stock splits, stock dividends or other distributions of
Capital Stock, or (ii) at least 20% (in the aggregate on a fully diluted
basis and free and clear of all Liens) of the Capital Stock (including 20%
in the aggregate of the voting rights of the outstanding voting stock) of
the Borrower; and
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(c) the failure of the Borrower or a Subsidiary Guarantor
to own and control all of the Capital Stock of each Subsidiary, free and
clear of all Liens except for Liens in favor of the Administrative Agent.
For purposes of this definition, (i) the terms "person" and "group"
shall have the respective meanings ascribed thereto in Sections 13(d) and
14(d)(2) of the Exchange Act, (ii) the term "beneficial owner" shall have
the meaning ascribed thereto in Rule 13d-3 under the Exchange Act, and (iii)
the term "voting stock" shall mean all outstanding shares of any class or
classes (however designated) of Capital Stock of the Borrower entitled to
vote generally in the election of members of the Managing Person thereof.
"CHANGE IN LAW" means (i) the adoption of any law, rule or regulation
after the Original Effective Date, (ii) the issuance or promulgation after
the Original Effective Date of any directive, guideline or request from any
Governmental Authority (whether or not having the force of law), or (iii)
any change after the Original Effective Date in the interpretation of any
existing law, rule, regulation, directive, guideline or request by any
Governmental Authority charged with the administration thereof.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"COLLATERAL" means any and all "COLLATERAL", as defined in any
Security Document.
"COMMITMENT FEE" has the meaning set forth in Section 3.2(a).
"COMMITMENT TERMINATION DATE" means January 31, 2002, or such earlier
date upon which the Revolving Commitments shall terminate or the Aggregate
Revolving Commitment shall otherwise equal zero.
"COMMITMENTS" means, collectively, the Revolving Commitments and the
Letter of Credit Commitment, each a "COMMITMENT".
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 7.1(c).
"CONTROL AGREEMENT" has the meaning specified in Section 7.12.
"CONVERSION DATE" means the date on which: (i) a Eurodollar Advance is
converted to an ABR Advance, (ii) an ABR Advance is converted to a
Eurodollar Advance or (iii) a Eurodollar Advance is converted to, or
continued as, a new Eurodollar Advance.
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"CREDIT PARTY" means the Administrative Agent, the Issuer or a Lender,
as the case may be.
"CREDIT REQUEST" means a request for Revolving Loans or a Letter of
Credit substantially in the form of Exhibit B.
"CUSTOMARY LIEN" means any of the following: (i) any Lien imposed by
law for Taxes that are not yet due or are being contested in compliance with
Section 7.4, provided that enforcement of such Lien is stayed pending such
contest; (ii) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 7.4, provided
that enforcement of each such Lien is stayed pending such contest; (iii)
pledges and deposits made in the ordinary course of business in compliance
with workers' compensation, unemployment insurance and other social security
laws or regulations; (iv) deposits and pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations
of like nature arising in the ordinary course of business; (v) judgment
liens in respect of judgments that would not cause an Event of Default under
Section 9.1(j); (vi) zoning ordinances, easements, rights of way, minor
defects, irregularities, and other similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct of business
of the Borrower or any Subsidiary; and (vii) Liens created under the Loan
Documents.
"CUSTOMER DEPOSIT ASSETS" means, at any date of determination, the
aggregate of all cash and Cash Equivalents of the Borrower and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP)
whether or not segregated to fund Customer Deposit Liabilities, in each case
valued in accordance with GAAP.
"CUSTOMER DEPOSIT LIABILITIES" means at any date of determination, the
aggregate of all current and long term liabilities of the Borrower and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP) in
respect of customer deposits less, without duplication, any prepayment to
suppliers for direct expenses attributable to vacation services in respect
of which the Borrower or any Subsidiary has received customer deposits, as
reflected on the consolidated balance sheet of the Borrower and its
Subsidiaries.
"CUSTOMER DEPOSIT RATIO" means at any date of determination, the ratio
of (i) Customer Deposit Assets held by the Borrower and its Subsidiaries on
such date to (ii) Customer Deposit Liabilities on such date.
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"DEFAULT" means any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"DISPOSITION" has the meaning set forth in Section 8.6.
"DISQUALIFIED STOCK" means any Capital Stock of any Person that, by
its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable at the option of the holder thereof), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of
the holder thereof, in whole or in part prior to the 367th day after the
Payoff Date, provided, however, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to
require such Person to repurchase such Capital Stock upon the occurrence of
certain events shall not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Borrower may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 8.7 of this Agreement.
"DOLLARS" and "$" mean lawful currency of the United States of
America.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is not a Foreign
Subsidiary.
"EBITDA" means, for any period, an amount equal to (i) net income of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP for such period, plus (ii) the sum of, without
duplication, each of the following with respect to the Borrower and its
Subsidiaries to the extent utilized in determining such net income for such
period, (a) cash interest expense, (b) cash income taxes paid, (c)
depreciation, amortization and other non-cash charges, (d) extraordinary
losses from sales, exchanges and other dispositions of Property not in the
ordinary course of business and (e) for each period which includes September
30, 1999, a non-recurring charge taken as of September 30, 1999, for
employee severance costs of approximately $310,000, minus (iii) the sum of,
without duplication, each of the following with respect to the Borrower and
its Subsidiaries, to the extent utilized in determining such net income for
such period: extraordinary gains from sales, exchanges and other
dispositions of property not in the ordinary course of business; provided,
however, that, notwithstanding anything to the contrary contained herein,
such amount shall be subject to such adjustments (including adjustments with
respect to specific items referred to in clauses (i), (ii) and (iii) of this
definition as the Borrower may hereafter request and the Required Lenders
shall approve in their discretion exercised reasonably. Notwithstanding the
foregoing, (i) for the fiscal quarters ending September 30, 1999 and
December 31, 1999, EBITDA shall be calculated by adding a non-cash charge
taken as of September 30, 1999 for the addition to the bad debt reserve of
the Allied division of the Borrower in the amount of approximately $820,000,
and (ii) for each period thereafter which includes September 30,
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1999, that portion of the amounts set forth in clause (i) above of to the
extent that the Borrower has received a cash payment in respect of a
purchase price adjustment described in Section 2.3(d)(vi).
"ENVIRONMENTAL LAWS" has the meaning set forth in Section 4.7.
"EQUITY ISSUANCE" means the issuance of any equity securities or the
receipt of any capital contribution, in each case by the Borrower, other
than (i) any issuance of equity securities to, or receipt of any such
capital contribution from, the Borrower, or (ii) the issuance of common
stock pursuant to a stock option plan, or for executive compensation, in
either case in the ordinary course of business.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA AFFILIATE" means any Person which is a member of any group of
organizations within the meaning of Sections 414(b) or (c) of the Code (or,
solely for purposes of potential liability under Section 302(c)(11) of ERISA
and Section 412(c)(11) of the Code and the lien created under Section 302(f)
of ERISA and Section 412(n) of the Code, Sections 414(m) or (o) of the Code)
of which the Borrower or any Subsidiary is a member.
"ERISA EVENT" means (i) a "reportable event", as defined in Section
4043 of ERISA with respect to a Pension Plan (other than an event for which
the 30-day notice period is waived), (ii) the existence with respect to any
Pension Plan of an "accumulated funding deficiency" (as defined in Section
412 of the Code or Section 302 of ERISA), whether or not waived; (ii) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to
any Pension Plan; (iv) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan; (vi) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Pension Plan or Pension Plans or to appoint
a trustee to administer any Pension Plan; (vii) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer
Plan; or (viii) the receipt by the Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR ADVANCES" means, collectively, the Revolving Loans (or any
portions thereof), at such time as they (or such portions) are made and/or
being maintained at a rate of interest based upon the Eurodollar Rate.
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"EURODOLLAR RATE" means, with respect each Eurodollar Advance, a rate
of interest per annum, as determined by the Administrative Agent, obtained
by dividing (and then rounding to the nearest 1/16 of 1% or, if there is no
nearest 1/16 of 1%, then to the next higher 1/16 of 1%)
(a) the rate of interest per annum as determined by the Administrative
Agent, equal to the rate, as reported by BNY to the Administrative Agent,
quoted by BNY to leading banks in the London interbank eurodollar market as
the rate at which BNY is offering dollar deposits in an amount approximately
equal to its Revolving Percentage of such Eurodollar Advance and having a
period to maturity approximately equal to the Interest Period applicable to
such Eurodollar Advance at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements
(including marginal, emergency, supplemental and special reserves),
expressed as a decimal, established by the Board and any other banking
authority to which BNY and other major money center banks chartered under
the laws of the United States or any State thereof are subject, in respect
of eurocurrency funding (currently referred to as "eurocurrency liabilities"
in Regulation D) without benefit of credit for proration, exceptions or
offsets which may be available from time to time to BNY.
"EVENT OF DEFAULT" has the meaning set forth in Section 9.1.
"EXCESS CASH FLOW" means, in respect of any period, (i) an amount
equal to the sum of EBITDA for such period plus Working Capital Decreases if
any, during such period less (ii) the sum of each of the following with
respect to the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP for such period: (a) Fixed Charges, (b) Capital
Expenditures made during such period, (c) Working Capital Increases, if any,
during such period and (d) all mandatory prepayments of the Revolving Loans
pursuant to Section 2.4(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"EXCLUDED TAX" means as to any Person, a Tax imposed by one of the
following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person
is organized, (iii) the jurisdiction in which such Person's principal office
is located, (iv) in the case of each Credit Party, any jurisdiction in which
such Credit Party is deemed to be doing business, (v) in the case of any
Foreign Credit Party, any withholding tax that is imposed on amounts payable
to such Foreign Credit Party at the time such Foreign Credit Party becomes a
party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Credit Party's failure to comply with Section
3.7(c), except to the extent that such Foreign
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Credit Party (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.7; which Tax (a) is any income tax or franchise tax imposed on all
or part of the net income or net profits of such Person or (b) represents
interest, fees or penalties for payment of any such income tax or franchise
tax.
"EXISTING ACQUISITION LOANS" has the meaning set forth in the
Recitals.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the Recitals.
"EXTENSIONS OF CREDIT" means, collectively, the Revolving Loans, the
Letters of Credit and any participations therein pursuant to Section 2.5(c).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, provided that (i)
if the day for which such rate is to be determined is not a Business Day,
the Federal Funds Effective Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so published for any
day, the Federal Funds Effective Rate for such day shall be the average of
the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Administrative Agent.
"FEES" has the meaning set forth in Section 2.6(a).
"FINANCIAL OFFICER" means, as to any Person, the chief financial
officer or the treasurer of such Person or such other officer as shall be
satisfactory to the Administrative Agent.
"FIRST RESTATEMENT DATE" means February 19, 1999.
"FIXED CHARGES" means, for the most recently completed twelve month
period, the sum, without duplication, of each of the following with respect
to the Borrower and the Subsidiaries for such period on a consolidated basis
in accordance with GAAP: (i) all cash interest expense, (ii) principal
amounts that became payable (whether or not paid and whether at the stated
maturity, by acceleration or by reason of or redemption or otherwise but not
by reason of an optional prepayment) by the Borrower or any Subsidiary in
respect of Indebtedness of the Borrower or the Subsidiaries during such
period, including mandatory principal prepayments of the Revolving Loans
required to be made pursuant to Section 2.4(b)(vii) (resulting from the
mandatory reduction of the Aggregate Revolving Commitment under Section
2.3(c)), but not including any other
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mandatory prepayment of the Revolving Loans required to be made pursuant to
Section 2.4(b), (iii) cash income taxes paid and (iv) Capital Expenditures
made by the Borrower or any of the Subsidiaries during such period.
Notwithstanding the foregoing, solely for the purposes of calculating Fixed
Charges for the twelve month period ending on December 31, 2000, Fixed
Charges shall not include the prepayment required to be made in respect of
the Scheduled Reduction Date occurring on December 31, 2000.
"FIXED CHARGE COVERAGE RATIO" means, at any date of determination, the
ratio of (a) EBITDA for Four Quarter Trailing Period, to (b) Fixed Charges
for such period.
"FOREIGN CREDIT PARTY" means any Credit Party that is organized under
the laws of a country (or political subdivision thereof) other than the
United States.
"FOREIGN SUBSIDIARY" means any Subsidiary that is a "controlled
foreign corporation" within the meaning of Section 957 of the Code.
"FOUR QUARTER TRAILING PERIOD" means, at any date of determination,
the four fiscal quarters ending on such date, or, if such date is not the
last day of a fiscal quarter, the period of the most immediately completed
four fiscal quarters.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state, municipal
or other government, or any department, commission, board, bureau, agency,
public authority or instrumentality thereof, or any court or arbitrator.
"GUARANTEE" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or in
effect guaranteeing any return on any investment made by another Person, or
any Indebtedness, lease, dividend or other obligation (a "primary
obligation") of any other Person (a "primary obligor") in any manner,
whether directly or indirectly, including any obligation of the guarantor,
direct or indirect (i) to purchase any primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (A) for the purchase or payment of any primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of a primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the beneficiary of any primary obligation of the ability of a
primary obligor to make payment of a primary obligation, (iv) otherwise to
assure or hold harmless the beneficiary of a primary obligation against loss
in respect thereof, and (v) in respect of the liabilities of any partnership
in which a secondary obligor is a general partner, except to the extent that
such liabilities of such partnership are nonrecourse to such secondary
obligor and its separate property, provided, however, that the term
"Guarantee" shall not include the endorsement of instruments for deposit
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or collection in the ordinary course of business. The amount of any
Guarantee shall be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guarantor in good faith.
"GRANT OF SECURITY INTEREST" means a grant of a security interest in
copyrights and trademarks in the forms of Annex B-1 and B-2, respectively,
to the Security Agreement or any other form approved by the Administrative
Agent.
"HEDGING AGREEMENT" means any interest rate swap, cap or collar
arrangement or any other derivative product customarily offered by banks or
other financial institutions to their customers in order to manage the
exposure of such customers to interest rate fluctuations.
"INDEBTEDNESS" means, as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of
property (other than trade payables incurred in the ordinary course of
business), (iii) indebtedness evidenced by notes, bonds, debentures or
similar instruments, (iv) obligations with respect to any conditional sale
or title retention agreement, (v) indebtedness arising under acceptance
facilities and the amount available to be drawn under all letters of credit
issued for the account of such Person and, without duplication, all drafts
drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment thereof, (vi) liabilities secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned by
such Person (other than carriers', warehousemen's, mechanics', repairmen's
or other like non-consensual statutory Liens arising in the ordinary course
of business), even though such Person has not assumed or otherwise become
liable for the payment thereof, (vii) Capital Lease Obligations, (viii) all
obligations of such Person in respect of Disqualified Stock, and (ix) all
Guarantees by such Person of Indebtedness of others. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person's ownership interest in
or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.
Notwithstanding the foregoing, Indebtedness shall not include (a) any
liability of any Person with respect to customer deposits and (b) contingent
liabilities of any Person in respect of a contract to use the services or
facilities of the other contracting party under which a signing bonus or
similar payment is made to such Person and which contract requires a refund
or rebate of all or a portion of such signing bonus or similar payment in
the event that such Person's usage of the contracting party's services or
facilities does not meet specified conditions, provided that (1) the amount
of such contingent liabilities excluded from Indebtedness under this clause
(b) in respect of any such contract shall not exceed the amount of the
signing bonus or other similar payment received by such Person in cash and
(2) the aggregate amount of such contingent
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liabilities excluded from Indebtedness under this clause (b) in respect of
all such contracts shall not exceed $2,000,000.
"INDEMNIFIED TAX" means as to any Person, any Tax, except (i) an
Excluded Tax imposed on such Person and (ii) any interest, fees or penalties
for late payment thereof imposed on such Person.
"INSOLVENT" means, with respect to any Person, (a) the sum of the
assets measured on a "going concern" basis (including goodwill as accounted
for in accordance with GAAP) at a fair valuation, of such Person does not
exceed its debts, (b) such Person has incurred debts beyond its ability to
pay such debts as such debts mature, (c) such Person believes that, in the
ordinary course of its business during the reasonably foreseeable future, it
will incur debts beyond its ability to pay such debts as such debts mature,
and (d) such Person has insufficient capital with which to conduct its
business. For purposes of this definition only, "DEBT" means any liability
on a claim, and "CLAIM" means any (i) right to payment, whether such a right
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, unsecured, liquidated or unliquidated.
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, trade secrets, confidential or proprietary technical and
business information and other similar property and all licenses related
thereto.
"INTERCOMPANY SUBORDINATION AGREEMENT" means a subordination agreement
substantially in the form of Exhibit F.
"INTEREST COVERAGE RATIO" means, as of the last day of any fiscal
quarter, the ratio of EBITDA to cash interest expense (including fees and
expenses associated with this Agreement to the extent to which such fees and
expenses are expensed and classified as interest expense in accordance with
GAAP), in each case for the Four Quarter Trailing Period.
"INTEREST PERIOD" means, as to each Eurodollar Advance, the period
commencing on, as the case may be, the Borrowing Date or Conversion Date
with respect thereto and ending one, two or three months thereafter, in each
case, as selected by the Borrower in its Credit Request or Notice of
Conversion.
"INVESTMENT GRADE SECURITY" means (i) in respect of a short term
security, any such security rated at least A1/P1 or A2/P2 by S&P or Moody's
(or an equivalent rating issued by a nationally recognized rating service)
and (ii) in respect of a long term security, any such security rated at
least BBB- or Baa3 by S&P or Moody's (or an equivalent rating issued by a
nationally recognized rating service), provided, however,
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that any derivative, option, hedging or other speculative instrument shall
not be considered to be an Investment Grade Security.
"ISSUER" means BNY.
"LETTERS OF CREDIT" has the meaning set forth in Section 2.5.
"LETTER OF CREDIT FEES" has the meaning set forth in Section 3.2(b).
"LETTER OF CREDIT COMMITMENT" means the commitment of the Issuer to
issue Letters of Credit having an aggregate outstanding face amount up to
$10,000,000.
"LETTER OF CREDIT EXPOSURE" means in respect of any Lender at any
time, an amount equal to (i) the sum (without duplication) at such time of
(x) the aggregate undrawn face amount of the outstanding Letters of Credit,
(y) the aggregate amount of unpaid drafts drawn on all Letters of Credit,
and (z) the aggregate unpaid Reimbursement Obligations, multiplied by (ii)
such Lender's Revolving Percentage at such time.
"LEVERAGE RATIO" means, as of any date, the ratio of (i) Total Debt as
of such date to (ii) EBITDA for the Four Quarter Trailing Period. EBITDA
shall be computed on a consistent basis to reflect Acquisitions and
Dispositions made by the Borrower and the Subsidiaries during the Four
Quarter Trailing Period as if they occurred at the beginning of the Four
Quarter Trailing Period.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other), or other security agreement or
security interest of any kind or nature whatsoever, including any
conditional sale or other title retention agreement and any capital or
financing lease having substantially the same economic effect as any of the
foregoing.
"LINE OF BUSINESS" means, the wholesale tour operators business
serving the leisure travel industry and any business reasonably similar,
complimentary, ancillary or related thereto.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Security Documents, each Secured Hedging Agreement and all other agreements,
instruments and documents executed or delivered in connection herewith.
"LOAN PARTIES" means, collectively, the Borrower and each Subsidiary
Guarantor.
"MANAGING PERSON" means, with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its
board of control, managing member or members, (iii) a limited partnership,
its general partner, (iv) a general partnership or a limited liability
partnership, its managing partner or executive
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committee or (v) any other Person, the managing body thereof or other Person
analogous to the foregoing.
"MARGIN STOCK" has the meaning set forth in Regulation U.
"MATERIAL ADVERSE" means, with respect to any change or effect, a
material adverse change in, or effect on, as the case may be, (i) the
business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole, (ii) the
ability of any Loan Party to perform its obligations under the Loan
Documents to which it is a party, (iii) the rights of, or benefits available
to, the Credit Parties under the Loan Documents, or (iv) the legality or
enforceability of any Loan Document.
"MATERIAL LIABILITIES" means, on any date, with respect to the
Borrower, any Subsidiary or any combination thereof: (i) all Indebtedness
(other than Indebtedness under the Loan Documents), (ii) the net termination
obligations in respect of one or more Hedging Agreements (calculated as if
such Hedging Agreements were terminated as of such date), and (iii) other
liabilities, in each case (i.e. clauses (i), (ii) and (iii) above) whether
as principal, guarantor, surety or other obligor, in an aggregate principal
amount exceeding $250,000.
"MATURITY DATE" means January 31, 2002, or such earlier date on which
the Notes shall become due and payable, whether by acceleration or
otherwise.
"MINIMUM AMOUNT" means in respect of (i) ABR Advances, $500,000 or
such amount plus a whole multiple of $100,000 in excess thereof, and (ii)
Eurodollar Advances, $1,000,000 or such amount plus a whole multiple of
$500,000 in excess thereof.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"MULTIEMPLOYER PLAN" means a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" means cash proceeds received from a Disposition,
an Equity Issuance, the incurrence of Refinancing Debt, a casualty loss or a
condemnation after deduction of taxes payable in cash in connection
therewith and net of reasonable transaction expenses.
"NET WORTH" means, at any date of determination, (i) the sum of,
without duplication, all amounts which would be included under
"shareholders' equity" or any analogous entry on a consolidated balance
sheet of the Borrower determined in accordance with GAAP as of such date
minus (ii) any preferred stock or other class of equity securities that, by
its stated terms (or by the terms of any class of equity securities
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issuable upon conversion thereof or in exchange therefor), or upon the
occurrence of any event, matures or is mandatorily redeemable, or is
redeemable at the option of the holders thereof, in whole or in part prior
to prior to the 367th day after the Payoff Date.
"NOTES" means with respect to each Lender in respect of such Lender's
Revolving Loans, a promissory note, substantially in the form of Exhibit A,
payable to the order of such Lender, each such promissory note having been
made by the Borrower and dated the Second Restatement Date, including all
replacements thereof and substitutions therefor.
"NOTICE OF CONVERSION" has the meaning set forth in Section 3.3(a).
"ORGANIZATIONAL DOCUMENTS" means as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of
such Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to
the foregoing.
"ORIGINAL EFFECTIVE DATE" means March 27, 1998.
"OTHER TAXES" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, the Loan Documents or
otherwise with respect to, the Loan Documents.
"PAYMENT OFFICE" the office of the Administrative Agent set forth in
Section 11.2(b).
"PAYOFF DATE" means the day on which the Obligations (as defined in
the Security Agreement) have been paid in full in cash or Cash Equivalents.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"PENSION PLAN" means, at any date of determination, any employee
pension benefit plan (other than a Multiemployer Plan), the funding
requirements of which (under Section 302 of ERISA or Section 412 of the
Code) are, or at any time within the six years immediately preceding such
date, were in whole or in part, the responsibility of the Borrower or any
ERISA Affiliate.
"PERFECTION CERTIFICATE" means a certificate in the form of Annex A to
the Security Agreement or any other form approved by the Administrative
Agent.
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"PERMITTED ACQUISITION" means an Acquisition permitted by Section 8.5.
"PERMITTED LIENS" has the meaning set forth in Section 8.2.
"PERSON" means a natural person, firm, partnership, limited liability
company, joint venture, corporation, association, business enterprise, joint
stock company, unincorporated association, trust, Governmental Authority or
any other entity, whether acting in an individual, fiduciary, or other
capacity, and for the purpose of the definition of "ERISA AFFILIATE", a
trade or business.
"PRIME RATE" means the rate of interest per annum publicly announced
in New York City by BNY from time to time as its prime commercial lending
rate, such rate to be adjusted automatically (without notice) on the
effective date of any change in such publicly announced rate.
"REGULATION D, T, U AND X" mean Regulations D, T, U and X,
respectively, of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"REFINANCING DEBT" has the meaning set forth in Section 8.1(g).
"REFINANCING DEBT DOCUMENTS" has the meaning set forth in Section
8.1(g).
"REIMBURSEMENT OBLIGATION" means, collectively, the obligation of the
Borrower to the Issuer with respect to each Letter of Credit and all
documents, instruments and other agreements related thereto, including the
obligation of the Borrower to reimburse the Issuer for amounts drawn under
such Letter of Credit.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, one or more Lenders having the
sum of unused Revolving Commitments and Revolving Exposures greater than or
equal to 51% of the sum of the unused Aggregate Revolving Commitment and
Aggregate Revolving Exposure, provided, however, that if at any time there
shall be only two Lenders, the term "REQUIRED LENDERS" shall mean both
Lenders.
"RESTRICTED PAYMENT" has the meaning set forth in Section 8.7.
"REVOLVING COMMITMENT" means, in respect of any Lender, the maximum
amount of such Lender's Revolving Exposure as set forth on the signature
page of such Lender under the heading "REVOLVING COMMITMENT" or in an
Assignment and
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Acceptance Agreement or other document pursuant to which it became a Lender,
as such amount may be adjusted from time to time in accordance herewith.
"REVOLVING EXPOSURE" means, with respect to any Lender as of any date,
the sum as of such date of (i) the outstanding principal balance of such
Lender's Revolving Loans, plus (ii) such Lender's Letter of Credit Exposure.
"REVOLVING LOAN" and "REVOLVING LOANS" have the meaning set forth in
Section 2.1(b).
"REVOLVING PERCENTAGE" means, as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the
Revolving Commitment of such Lender on such date (or, if there are no
Revolving Commitments on such date, on the last date upon which one or more
Revolving Commitments were in effect), and (ii) the denominator of which is
sum of the Revolving Commitments of all Lenders on such date (or, if there
are no Revolving Commitments on such date, on the last date upon which one
or more Revolving Commitments were in effect).
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SCHEDULED REDUCTION DATE" has the meaning set forth in Section
2.3(c).
"SEC" means the Securities and Exchange Commission or any Governmental
Authority succeeding to the functions thereof.
"SECOND RESTATEMENT DATE" has the meaning set forth in Recital E.
"SECURED HEDGING AGREEMENT" means any Hedging Agreement entered into
by the Borrower with a counterparty that was a Lender (or an Affiliate
thereof) at the time such Hedging Agreement was entered into.
"SECURED PARTIES" has the meaning set forth in the Security Agreement.
"SECURITIES ACCOUNT" has the meaning set forth in the Security
Agreement. Securities Account shall not include operating checking accounts
maintained in the ordinary course of business.
"SECURITY AGREEMENT" means the Security Agreement, dated as of March
27, 1998, by and among the Loan Parties party thereto and the Administrative
Agent.
"SECURITY DOCUMENTS" means, collectively, (i) the Security Agreement
and the Subsidiary Guarantee, (ii) upon the execution and delivery thereof,
the Intercompany Subordination Agreement, the Grants of Security Interest
and each Control
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Agreement, and all other instruments and documents delivered pursuant to
Section 7.9 or 7.10 to secure any of the Borrower Obligations or Guarantor
Obligations (as defined in the Subsidiary Guarantee).
"SUBSIDIARY" means, with respect to any Person (the "parent") at any
date, any other Person (i) the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such
date, (ii) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power
or, in the case of a partnership, more than 50% of the general partnership
interests or more than 50% of the profits or losses of which are, as of such
date, owned, controlled or held by the parent or one or more subsidiaries of
the parent. Unless otherwise qualified, all references to "SUBSIDIARY" or to
"SUBSIDIARIES" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"SUBSIDIARY GUARANTOR" means each Subsidiary party to the Subsidiary
Guarantee.
"SUBSIDIARY GUARANTEE" means the Subsidiary Guarantee, dated as of
March 27, 1998, by and among the Subsidiary Guarantors, the Borrower and the
Administrative Agent.
"TAX" means any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied,
collected, withheld or assessed.
"XXXXXX" means Xxxxxx Equity Investors III, L.P., a Delaware limited
partnership.
"TOTAL DEBT" means, as of any date, the sum of (i) all Indebtedness of
the Borrower and the Subsidiaries, to the extent that as at such date such
Indebtedness would appear on a consolidated balance sheet of the Borrower
prepared in accordance with GAAP plus (ii) Indebtedness in respect of
letters of credit (described in clause (v) of the definition of
Indebtedness) plus (iii) obligations of the Borrower or any Subsidiary in
excess of $3,700,000 in the aggregate to sureties in respect of surety bonds
issued by sureties on behalf of the Borrower or any Subsidiary, (iv) an
amount (not less than zero) equal to Customer Deposit Liabilities on such
date less Customer Deposit Assets on such date.
"TRANSACTIONS" means, collectively, the transactions contemplated by
the Loan Documents.
"UNCONSOLIDATED INVESTMENT" means, as of any date, any investment made
by the Borrower or any Subsidiary in any other Person that, pursuant to GAAP
as
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in effect on such date, would not be consolidated with the Borrower for
financial reporting purposes immediately after giving effect to such
investment.
"UNITED STATES" means the United States of America.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person,
100% of the outstanding Capital Stock of such Subsidiary is owned, directly
or indirectly, by such Person.
"WITHDRAWAL LIABILITY" means, with respect to any Person, liability of
such Person to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.
"WORKING CAPITAL" means, at any date of determination, the difference
between (i) current assets of the Borrower and the Subsidiaries determined
on a consolidated basis in accordance with GAAP minus (ii) current
liabilities of the Borrower and the Subsidiaries determined on a
consolidated in accordance with GAAP less the current portion of long term
debt.
"WORKING CAPITAL DECREASE" means, for any period, the result, if
positive, obtained by subtracting Working Capital at the close of business
on the last day of such period from Working Capital at the opening of
business on the first day of such period.
"WORKING CAPITAL INCREASE" means, for any period, the result, if
positive, obtained by subtracting Working Capital at the opening of business
on the first day of such period from Working Capital at the close of
business on the last day of such period.
SECTION 1.2. ACCOUNTING TERMS
As used in the Loan Documents and in any certificate, opinion or other
document made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under
GAAP. If any change in GAAP would affect the computation of any financial
ratio or requirement set forth in this Agreement, the Credit Parties and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
reflect such change in GAAP (subject to the approval of the Required
Lenders), provided that, until so amended, (i) such ratio or requirement
shall continue to be computed in accordance with GAAP prior to such change
and (ii) the Borrower shall provide to the Credit Parties financial
statements and other documents required under this Agreement (or such other
items as the Administrative Agent may reasonably request) setting forth a
reconciliation between calculations of such ratio or requirement before and
after giving effect to such change.
SECTION 1.3. RULES OF INTERPRETATION
UNLESS EXPRESSLY PROVIDED IN A LOAN DOCUMENT TO THE CONTRARY, (i) THE WORDS
"HEREOF", "HEREIN", "HERETO" AND "HEREUNDER" AND SIMILAR WORDS WHEN USED IN
EACH LOAN DOCUMENT SHALL REFER TO SUCH LOAN DOCUMENT AS A WHOLE AND NOT TO
ANY PARTICULAR PROVISION THEREOF, (ii) ARTICLE, SECTION, SUBSECTION,
SCHEDULE AND EXHIBIT REFERENCES CONTAINED THEREIN SHALL REFER TO ARTICLE,
SECTION, SUBSECTION, SCHEDULE AND EXHIBIT THEREOF OR THERETO, (iii) THE
WORDS "INCLUDE" AND "INCLUDING", SHALL MEAN THAT THE SAME SHALL BE
"INCLUDED, WITHOUT LIMITATION", (iv) ANY DEFINITION OF, OR REFERENCE TO, ANY
AGREEMENT, INSTRUMENT, CERTIFICATE OR OTHER DOCUMENT HEREIN SHALL BE
CONSTRUED AS REFERRING TO SUCH
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AGREEMENT, INSTRUMENT OR OTHER DOCUMENT AS FROM TIME TO TIME AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED, (v) ANY REFERENCE HEREIN TO ANY PERSON
SHALL BE CONSTRUED TO INCLUDE SUCH PERSON'S SUCCESSORS AND ASSIGNS, (vi) THE
WORDS "ASSET" AND "PROPERTY" SHALL BE CONSTRUED TO HAVE THE SAME MEANING AND
TO REFER TO ANY AND ALL TANGIBLE AND INTANGIBLE ASSETS AND PROPERTIES,
INCLUDING CASH, SECURITIES, ACCOUNTS AND CONTRACT RIGHTS, (vii) WORDS IN THE
SINGULAR NUMBER INCLUDE THE PLURAL, AND WORDS USED THEREIN IN THE PLURAL
INCLUDE THE SINGULAR, (viii) ANY REFERENCE TO A TIME SHALL REFER TO SUCH
TIME IN NEW YORK, (ix) IN THE COMPUTATION OF PERIODS OF TIME FROM A
SPECIFIED DATE TO A LATER SPECIFIED DATE, THE WORD "FROM" MEANS "FROM AND
INCLUDING" AND THE WORDS "TO" AND "UNTIL" EACH MEANS "TO BUT EXCLUDING", AND
(x) REFERENCES THEREIN TO A FISCAL PERIOD SHALL REFER TO THAT FISCAL PERIOD
OF THE BORROWER.
ARTICLE AND SECTION HEADINGS HAVE BEEN INSERTED IN THE LOAN DOCUMENTS FOR
CONVENIENCE ONLY AND SHALL NOT BE CONSTRUED TO BE A PART THEREOF.
ARTICLE 2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT
SECTION 2.1. REVOLVING LOANS
Prior to the Second Restatement Date, the Lenders made the
Existing Acquisition Loans to the Borrower. Immediately prior to the
effectiveness of this Agreement, the aggregate outstanding principal balance
of the Existing Acquisition Loans was approximately $35,000,000. Subject to
the terms and conditions hereof, the Existing Acquisition Loans are hereby
converted to revolving credit loans, which revolving credit loans shall be
combined with other revolving credit loans made under this Section 2.1.
Subject to the terms and conditions hereof, each Lender severally agrees to
make revolving credit loans in Dollars (each, together with a converted
Acquisition Loan referred to in the previous sentence, a "Revolving Loan"
and, as the context may require, collectively with all other Revolving Loans
of such Lender and with the Revolving Loans of all other Lenders, the
"Revolving Loans") to the Borrower from time to time on any Business Day
during the period from the Second Restatement Date to the Commitment
Termination Date, provided that after giving effect thereto (i) such
Lender's Revolving Exposure would not exceed such Lender's Revolving
Commitment, and (ii) the Aggregate Revolving Exposure would not exceed the
Aggregate Revolving Commitment. During such period, the Borrower may borrow,
prepay in whole or in part and reborrow under the Revolving Commitments, all
in accordance with the terms and conditions of this Agreement. The
outstanding principal balance of each Revolving Loan shall be due and
payable on the Maturity Date.
SECTION 2.2. PROCEDURE FOR BORROWING
Credit Request. TO REQUEST A REVOLVING LOAN, THE BORROWER SHALL NOTIFY THE
ADMINISTRATIVE AGENT BY THE DELIVERY OF A CREDIT REQUEST, WHICH SHALL BE
SENT BY FACSIMILE AND SHALL BE IRREVOCABLE (CONFIRMED PROMPTLY, AND IN ANY
EVENT WITHIN FIVE BUSINESS DAYS, BY THE DELIVERY TO THE ADMINISTRATIVE AGENT
OF A CREDIT REQUEST MANUALLY SIGNED BY THE BORROWER), NO LATER THAN 11:00
A.M., THREE BUSINESS DAYS PRIOR TO THE REQUESTED BORROWING DATE IN THE CASE
OF EURODOLLAR ADVANCES AND 10:00 A.M., ON THE REQUESTED BORROWING DATE IN
THE CASE OF ABR ADVANCES, SPECIFYING (A) THE AGGREGATE PRINCIPAL AMOUNT TO
BE BORROWED, (B) THE REQUESTED BORROWING DATE, (C) WHETHER SUCH BORROWING IS
TO CONSIST OF ONE OR MORE EURODOLLAR ADVANCES, ABR ADVANCES, OR A
COMBINATION THEREOF AND (D) IF THE REVOLVING LOAN IS TO CONSIST OF ONE OR
MORE EURODOLLAR ADVANCES, THE AMOUNT AND LENGTH OF THE INTEREST PERIOD FOR
EACH EURODOLLAR ADVANCE. EACH CREDIT REQUEST SHALL BE ACCOMPANIED BY A
REASONABLY DETAILED CALCULATION OF THE LEVERAGE RATIO ON A PRO FORMA BASIS
IMMEDIATELY AFTER GIVING EFFECT TO SUCH REVOLVING LOAN. THE AMOUNT OF EACH
(i) EURODOLLAR ADVANCE TO BE MADE ON A BORROWING DATE, WHEN AGGREGATED WITH
ALL AMOUNTS TO BE CONVERTED TO, OR CONTINUED AS, A EURODOLLAR ADVANCE ON
SUCH DATE AND HAVING THE SAME INTEREST PERIOD AS SUCH FIRST EURODOLLAR
ADVANCE, SHALL
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EQUAL THE MINIMUM AMOUNT AND (ii) EACH ABR ADVANCE MADE ON EACH BORROWING
DATE SHALL EQUAL THE MINIMUM AMOUNT OR, IF LESS, THE UNUSED PORTION OF THE
AGGREGATE REVOLVING COMMITMENT.
Funding by Lenders. UPON RECEIPT OF EACH CREDIT REQUEST, THE ADMINISTRATIVE
AGENT SHALL PROMPTLY NOTIFY EACH LENDER THEREOF. SUBJECT TO ITS RECEIPT OF
THE NOTICE REFERRED TO IN THE PRECEDING SENTENCE, EACH LENDER WILL MAKE THE
AMOUNT OF ITS REVOLVING PERCENTAGE OF THE REQUESTED REVOLVING LOANS AVAILABLE
TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE BORROWER AT THE PAYMENT
OFFICE NOT LATER THAN 1:00 P.M. ON THE RELEVANT BORROWING DATE REQUESTED BY
THE BORROWER, IN FUNDS IMMEDIATELY AVAILABLE TO THE ADMINISTRATIVE AGENT AT
SUCH OFFICE. THE AMOUNTS SO MADE AVAILABLE TO THE ADMINISTRATIVE AGENT ON
SUCH BORROWING DATE WILL THEN, SUBJECT TO THE SATISFACTION OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, BE MADE AVAILABLE ON SUCH DATE TO THE BORROWER
BY THE ADMINISTRATIVE AGENT AT THE PAYMENT OFFICE BY CREDITING THE ACCOUNT OF
THE BORROWER ON THE BOOKS OF THE ADMINISTRATIVE AGENT AT SUCH OFFICE WITH THE
AGGREGATE OF SAID AMOUNTS (IN LIKE FUNDS) RECEIVED BY THE ADMINISTRATIVE
AGENT. THE FAILURE OF ANY LENDER TO PROVIDE SUCH LENDER'S SHARE OF THE
REQUESTED REVOLVING LOANS SHALL NOT RELIEVE ANY OTHER LENDER OF ITS
OBLIGATIONS HEREUNDER TO PROVIDE ITS SHARE OF THE REQUESTED REVOLVING LOANS.
Failure to Fund. UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE
PRIOR TO A PROPOSED BORROWING DATE (OR, IN THE CASE OF A BORROWING OF ABR
ADVANCES, PRIOR TO 12:00 NOON ON SUCH BORROWING DATE) FROM A LENDER (BY
TELEPHONE OR OTHERWISE, SUCH NOTICE TO BE PROMPTLY CONFIRMED BY FACSIMILE OR
OTHER WRITING) THAT SUCH LENDER WILL NOT MAKE AVAILABLE TO THE
ADMINISTRATIVE AGENT SUCH LENDER'S SHARE OF THE REQUESTED REVOLVING LOANS,
THE ADMINISTRATIVE AGENT MAY ASSUME THAT SUCH LENDER HAS MADE SUCH SHARE
AVAILABLE TO THE ADMINISTRATIVE AGENT ON THE BORROWING DATE IN ACCORDANCE
WITH THIS SECTION AND, IN RELIANCE UPON SUCH ASSUMPTION, MAKE AVAILABLE TO
THE BORROWER ON SUCH BORROWING DATE A CORRESPONDING AMOUNT. IF AND TO THE
EXTENT SUCH LENDER SHALL NOT HAVE SO MADE SUCH SHARE AVAILABLE TO THE
ADMINISTRATIVE AGENT, SUCH LENDER AND THE BORROWER SEVERALLY AGREE TO PAY TO
THE ADMINISTRATIVE AGENT FORTHWITH ON DEMAND SUCH CORRESPONDING AMOUNT (TO
THE EXTENT NOT PREVIOUSLY PAID BY THE OTHER), TOGETHER WITH INTEREST THEREON
FOR EACH DAY FROM THE DATE SUCH AMOUNT IS MADE AVAILABLE TO THE BORROWER TO
THE DATE SUCH AMOUNT IS PAID TO THE ADMINISTRATIVE AGENT, AT A RATE PER
ANNUM EQUAL TO, IN THE CASE OF THE BORROWER, THE INTEREST RATE OTHERWISE
APPLICABLE TO SUCH REVOLVING LOAN, AND, IN THE CASE OF SUCH LENDER, AT A
RATE OF INTEREST PER ANNUM EQUAL TO THE GREATER OF THE FEDERAL FUNDS
EFFECTIVE RATE AND A RATE DETERMINED BY THE ADMINISTRATIVE AGENT IN
ACCORDANCE WITH BANKING INDUSTRY RATES ON INTERBANK COMPENSATION. IF SUCH
LENDER SHALL PAY TO THE ADMINISTRATIVE AGENT SUCH CORRESPONDING AMOUNT, SUCH
AMOUNT SO PAID SHALL CONSTITUTE SUCH LENDER'S REVOLVING LOAN AS PART OF THE
RELEVANT BORROWING FOR PURPOSES OF THIS AGREEMENT.
SECTION 2.3. TERMINATION OR REDUCTION OF COMMITMENTS
Voluntary Termination or Reductions. THE BORROWER MAY, UPON AT LEAST THREE
BUSINESS DAYS' PRIOR WRITTEN NOTICE TO THE ADMINISTRATIVE AGENT, (i) AT ANY
TIME WHEN THE AGGREGATE REVOLVING EXPOSURE SHALL BE ZERO, TERMINATE ALL OF
THE REVOLVING COMMITMENTS, AND (ii) AT ANY TIME AND FROM TIME TO TIME WHEN
(A) THE AGGREGATE REVOLVING COMMITMENT SHALL EXCEED THE AGGREGATE REVOLVING
EXPOSURE (AFTER GIVING EFFECT TO ANY CONTEMPORANEOUS PAYMENT OR PREPAYMENT
OF REVOLVING LOANS OR REIMBURSEMENT OBLIGATIONS) PERMANENTLY REDUCE THE
AGGREGATE REVOLVING COMMITMENT BY A SUM NOT GREATER THAN THE AMOUNT OF SUCH
EXCESS, PROVIDED, HOWEVER, THAT EACH SUCH PARTIAL REDUCTION SHALL BE IN THE
AMOUNT OF $1,000,000 OR SUCH AMOUNT PLUS A WHOLE MULTIPLE OF $500,000 IN
EXCESS THEREOF.
Termination on Commitment Termination Date. UNLESS PREVIOUSLY TERMINATED, THE
REVOLVING COMMITMENTS SHALL TERMINATE ON THE COMMITMENT TERMINATION DATE.
Scheduled Reductions of the Aggregate Revolving Commitment. ON THE SECOND
RESTATEMENT DATE, THE AGGREGATE REVOLVING COMMITMENT (AFTER GIVING EFFECT TO
THE COMBINATION THEREOF WITH THE AGGREGATE ACQUISITION LOAN COMMITMENT (AS
DEFINED IN THE EXISTING CREDIT AGREEMENT)) SHALL BE PERMANENTLY REDUCED TO
$41,000,000. IN ADDITION, ON EACH DATE SET FORTH BELOW (EACH, A "Scheduled
Reduction Date"), THE AGGREGATE REVOLVING COMMITMENT SHALL BE AUTOMATICALLY
REDUCED TO THE FOLLOWING AMOUNTS:
======================================================================================
SCHEDULED REDUCTION DATE AMOUNT
--------------------------------------------------------------------------------------
January 14, 2000 $36,000,000
======================================================================================
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======================================================================================
SCHEDULED REDUCTION DATE AMOUNT
--------------------------------------------------------------------------------------
December 31, 2000 $31,000,000
--------------------------------------------------------------------------------------
December 31, 2001 $26,000,000
--------------------------------------------------------------------------------------
Commitment Termination Date $0
======================================================================================
Other Revolving Commitment Reductions. ON OR BEFORE EACH DATE SET FORTH
BELOW, THE AGGREGATE REVOLVING COMMITMENT SHALL BE PERMANENTLY REDUCED BY
THE AMOUNT SET FORTH BELOW AND APPLICABLE TO SUCH DATE:
on the day of the occurrence of a Disposition described in Section
8.6(d), by an amount equal to 100% of the Net Cash Proceeds with respect to
such Disposition in excess of the first $100,000 in the aggregate of such
Net Cash Proceeds received with respect to Dispositions after the Second
Restatement Date;
on the earlier of the date the annual financial statements in respect of
each fiscal year are delivered to the Administrative Agent pursuant to
Section 7.1(a), or the 90th day following the end of each such fiscal year,
by an amount equal to the following: (A) if the Leverage Ratio at the end of
such fiscal year is greater than 2.50:1.00, 75% of Excess Cash Flow, and (B)
if the Leverage Ratio at the end of such fiscal year is less than or equal
to 2.50:1.00, 50% of Excess Cash Flow;
upon receipt by the Borrower or any Subsidiary Guarantor of Net Cash
Proceeds attributable to one or more Equity Issuances after the Second
Restatement Date, by an amount equal to 100% of the first $10,000,000 of
such Net Cash Proceeds;
upon receipt by the Borrower or any Subsidiary of Net Cash Proceeds of
Refinancing Debt, by an amount equal to 100% of such Net Cash Proceeds;
in an amount equal to all Applicable Proceeds (i) in excess of amounts
used to replace or repair any properties or (ii) which are not used or
designated to replace or repair properties within one year after receipt
thereof, provided that the Borrower or the applicable Subsidiary Guarantor
shall have commenced the restoration or replacement process (including the
making of appropriate filings and requests for approval) within 45 days
after such casualty or after the receipt of any such condemnation proceeds,
as the case may be, and diligently pursues the same through completion; and
with respect to any Acquisition, upon the later of (x) January 14, 2000
and (y) the receipt by the Borrower or any Subsidiary of proceeds from any
reduction, or refund of any portion of, the Acquisition Consideration paid
in respect thereof resulting from any post-closing adjustment made in
connection therewith, by an amount equal to 100% of such proceeds in excess
of the first $800,000 thereof received after the Second Restatement Date;
provided, however, that if on the date of any reduction of the Aggregate
Revolving Commitment, the Aggregate Revolving Exposure exceeds the Aggregate
Revolving Commitment after giving effect to such reduction and, if the
Revolving Loans have been paid in full and the Letter of Credit Exposure of
all Lenders is greater than zero, the Borrower shall deposit into the Cash
Collateral Account an amount in cash that would cause the balance on deposit
in the Cash Collateral Account to equal or exceed the Letter of Credit
Exposure of all Lenders.
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Reductions of Letter of Credit Commitment. THE LETTER OF CREDIT COMMITMENT
SHALL NOT BE REDUCED UNTIL SUCH TIME AS THE AGGREGATE REVOLVING COMMITMENT
SHALL EQUAL SUCH LETTER OF CREDIT COMMITMENT, AND THEREAFTER SHALL IN EACH
CASE BE REDUCED, AUTOMATICALLY, BY A SUM EQUAL TO THE AMOUNT OF EACH SUCH
REDUCTION IN THE AGGREGATE REVOLVING COMMITMENT.
Reductions in General. EACH REDUCTION OF THE REVOLVING LOAN COMMITMENT MADE
PURSUANT TO SECTION 2.3(d) SHALL BE APPLIED TO THE REMAINING SCHEDULED
REDUCTIONS OF THE AGGREGATE REVOLVING COMMITMENT SET FORTH IN SECTION 2.3(c)
ON A PRO RATA BASIS. EACH REDUCTION OF THE AGGREGATE REVOLVING COMMITMENT
SHALL BE MADE BY REDUCING EACH LENDER'S REVOLVING COMMITMENT BY AN AMOUNT
EQUAL TO SUCH LENDER'S REVOLVING PERCENTAGE OF SUCH REDUCTION.
SIMULTANEOUSLY WITH EACH REDUCTION OF THE AGGREGATE REVOLVING COMMITMENT,
THE BORROWER SHALL PAY THE COMMITMENT FEE ACCRUED ON THE AMOUNT BY WHICH THE
AGGREGATE REVOLVING COMMITMENT HAS BEEN REDUCED.
SECTION 2.4. PREPAYMENTS OF REVOLVING LOANS
Voluntary Prepayments. THE BORROWER SHALL HAVE THE RIGHT AT ANY TIME AND
FROM TIME TO TIME TO PREPAY ALL OR ANY PORTION OF THE REVOLVING LOANS
WITHOUT PREMIUM OR PENALTY (BUT SUBJECT TO SECTION 3.5), BY DELIVERING TO
THE ADMINISTRATIVE AGENT AN IRREVOCABLE WRITTEN NOTICE THEREOF AT LEAST ONE
BUSINESS DAY PRIOR TO THE PROPOSED PREPAYMENT DATE, IN THE CASE OF REVOLVING
LOANS CONSISTING OF ABR ADVANCES, AND AT LEAST THREE BUSINESS DAYS PRIOR TO
THE PROPOSED PREPAYMENT DATE, IN THE CASE OF REVOLVING LOANS CONSISTING OF
EURODOLLAR ADVANCES, SPECIFYING WHETHER THE REVOLVING LOANS TO BE PREPAID
CONSIST OF ABR ADVANCES, EURODOLLAR ADVANCES, OR A COMBINATION THEREOF, THE
AMOUNT TO BE PREPAID AND THE DATE OF PREPAYMENT, WHEREUPON THE AMOUNT
SPECIFIED IN SUCH NOTICE SHALL BE DUE AND PAYABLE ON THE DATE SPECIFIED.
UPON RECEIPT OF EACH SUCH NOTICE, THE ADMINISTRATIVE AGENT SHALL PROMPTLY
NOTIFY EACH LENDER THEREOF. EACH PARTIAL PREPAYMENT OF THE REVOLVING LOANS
PURSUANT TO THIS SUBSECTION SHALL BE IN AN AMOUNT EQUAL TO THE MINIMUM
AMOUNT, OR, IF LESS, THE OUTSTANDING PRINCIPAL BALANCE OF THE REVOLVING
LOANS. AFTER GIVING EFFECT TO ANY PARTIAL PREPAYMENT WITH RESPECT TO
EURODOLLAR ADVANCES WHICH WERE MADE (WHETHER AS THE RESULT OF A BORROWING, A
CONVERSION OR A CONTINUATION) ON THE SAME DATE AND WHICH HAD THE SAME
INTEREST PERIOD, THE OUTSTANDING PRINCIPAL BALANCE OF SUCH EURODOLLAR
ADVANCES SHALL EXCEED (SUBJECT TO SECTION 3.3) THE MINIMUM AMOUNT.
Other Mandatory Prepayments. ON OR BEFORE EACH DATE SET FORTH BELOW, THE
BORROWER SHALL PREPAY THE REVOLVING LOANS BY THE AMOUNT SET FORTH BELOW AND
APPLICABLE TO SUCH DATE:
on the day of the occurrence of a Disposition described in Section
8.6(d), by an amount equal to 100% of the Net Cash Proceeds with respect to
such Disposition in excess of the first $100,000 in the aggregate of such
Net Cash Proceeds received with respect to Dispositions after the Second
Restatement Date;
on the earlier of the date the annual financial statements in respect of
each fiscal year are delivered to the Administrative Agent pursuant to
Section 7.1(a), or the 90th day following the end of each such fiscal year,
by an amount equal to the following: (A) if the Leverage Ratio at the end of
such fiscal year is greater than 2.50:1.00, 75% of Excess Cash Flow, and (B)
if the Leverage Ratio at the end of such fiscal year is less than or equal
to 2.50:1.00, 50% of Excess Cash Flow;
upon receipt by the Borrower or any Subsidiary Guarantor of Net Cash
Proceeds attributable to one or more Equity Issuances after the Second
Restatement Date, by an amount equal to 100% of the first $10,000,000 of
such Net Cash Proceeds;
upon receipt by the Borrower or any Subsidiary of Net Cash Proceeds of
Refinancing Debt, by an amount equal to 100% of such Net Cash Proceeds;
in an amount equal to all Applicable Proceeds (i) in excess of amounts
used to replace or repair any properties or (ii) which are not used or
designated to replace or repair properties within one year after receipt
thereof, provided that the Borrower or the applicable Subsidiary Guarantor
shall have commenced the restoration or replacement process (including the
making of appropriate filings and requests for approval) within 45 days
after such casualty or after the receipt of any such condemnation proceeds,
as the case may be, and diligently pursues the same through completion;
with respect to any Acquisition, upon the later of (x) January 14, 2000
and (y) the receipt by the Borrower or any Subsidiary of proceeds from any
reduction, or refund of any portion of, the Acquisition Consideration paid
in respect thereof resulting from any post-closing adjustment made in
connection therewith, by an amount equal to 100% of such proceeds in excess
of the first $800,000 thereof received after the Second Restatement Date;
and
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simultaneously with each reduction or termination of the Aggregate
Revolving Commitment, the Borrower shall prepay the Revolving Loans by an
amount equal to the lesser of (A) the aggregate outstanding principal
balance of the Revolving Loans, or (B) the excess of the Aggregate Revolving
Exposure (giving effect to the prepayments required in clauses (i) through
(vi) above) over the Aggregate Revolving Commitment as so reduced or
terminated, provided that if after giving effect to such prepayment on a
Scheduled Reduction Date, the aggregate outstanding principal balance of the
Revolving Loans exceeds the amount set forth in the following table opposite
such Scheduled Reduction Date, the Borrower shall make an additional
prepayment of the Revolving Loans on such Scheduled Reduction Date in an
amount equal to such excess:
==================================================================================
SCHEDULED REDUCTION DATE AMOUNT
----------------------------------------------------------------------------------
January 14, 2000 $30,000,000
----------------------------------------------------------------------------------
December 31, 2000 $25,000,000
----------------------------------------------------------------------------------
December 31, 2001 $20,000,000
==================================================================================
SIMULTANEOUSLY WITH EACH REDUCTION OR TERMINATION OF THE AGGREGATE REVOLVING
COMMITMENT, IN THE EVENT THAT THE LETTER OF CREDIT COMMITMENT SHALL EXCEED
THE AGGREGATE REVOLVING COMMITMENT AS SO REDUCED OR TERMINATED, THE LETTER
OF CREDIT COMMITMENT SHALL BE AUTOMATICALLY REDUCED BY AN AMOUNT EQUAL TO
SUCH EXCESS, PROVIDED THAT IF THE AGGREGATE LETTER OF CREDIT EXPOSURE OF ALL
LENDERS EXCEEDS THE LETTER OF CREDIT COMMITMENT AS SO REDUCED OR TERMINATED,
THE BORROWER SHALL IMMEDIATELY DEPOSIT INTO THE CASH COLLATERAL ACCOUNT SUCH
AMOUNT, IN CASH, AS WOULD CAUSE THE BALANCE ON DEPOSIT IN THE CASH
COLLATERAL ACCOUNT TO EQUAL OR EXCEED THE AGGREGATE LETTER OF CREDIT
EXPOSURE OF ALL LENDERS.
In General. SIMULTANEOUSLY WITH EACH PREPAYMENT OF A REVOLVING LOAN, THE
BORROWER SHALL PREPAY ALL ACCRUED INTEREST ON THE AMOUNT PREPAID THROUGH THE
DATE OF PREPAYMENT.
SECTION 2.5. LETTERS OF CREDIT
Availability; Procedure. THE BORROWER MAY REQUEST THE ISSUER TO ISSUE
STANDBY LETTERS OF CREDIT (THE "Letters of Credit"; EACH, INDIVIDUALLY, A
"Letter of Credit") DURING THE PERIOD FROM THE SECOND RESTATEMENT DATE TO
THE TENTH BUSINESS DAY PRIOR TO THE MATURITY DATE, PROVIDED THAT (i)
IMMEDIATELY AFTER THE ISSUANCE OF EACH LETTER OF CREDIT, THE LETTER OF
CREDIT EXPOSURE OF ALL LENDERS WOULD NOT EXCEED THE LETTER OF CREDIT
COMMITMENT, AND (ii) THE AGGREGATE REVOLVING EXPOSURE WOULD NOT EXCEED THE
AGGREGATE REVOLVING COMMITMENT. TO REQUEST THE ISSUANCE OF A LETTER OF
CREDIT, THE BORROWER SHALL NOTIFY THE ADMINISTRATIVE AGENT AND THE ISSUER BY
THE DELIVERY OF A CREDIT REQUEST, WHICH SHALL BE SENT BY FACSIMILE AND SHALL
BE IRREVOCABLE (CONFIRMED PROMPTLY, AND IN ANY EVENT WITHIN FIVE BUSINESS
DAYS, BY THE DELIVERY TO THE ADMINISTRATIVE AGENT OF A CREDIT REQUEST
MANUALLY SIGNED BY THE BORROWER), AT LEAST THREE BUSINESS DAYS PRIOR TO THE
REQUESTED DATE OF ISSUANCE, SPECIFYING (A) THE BENEFICIARY OF SUCH LETTER OF
CREDIT, (B) THE BORROWER'S PROPOSAL AS TO THE CONDITIONS UNDER WHICH A
DRAWING MAY BE MADE UNDER SUCH LETTER OF CREDIT AND THE DOCUMENTATION TO BE
REQUIRED IN RESPECT THEREOF, (C) THE MAXIMUM AMOUNT TO BE AVAILABLE UNDER
SUCH LETTER OF CREDIT, AND (D) THE REQUESTED DATES OF ISSUANCE AND
EXPIRATION. SUCH CREDIT REQUEST SHALL BE ACCOMPANIED BY A DULY COMPLETED
APPLICATION FOR SUCH LETTER OF CREDIT ON SUCH FORMS AS MAY BE MADE AVAILABLE
FROM TIME TO TIME BY THE ISSUER AND SUCH OTHER CERTIFICATES, DOCUMENTS
(INCLUDING A REIMBURSEMENT AGREEMENT) AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE ISSUER IN ACCORDANCE WITH ITS CUSTOMARY PROCEDURES
(COLLECTIVELY, THE "Letter of Credit Documentation"). UPON RECEIPT OF SUCH
CREDIT REQUEST FROM THE BORROWER, THE ADMINISTRATIVE AGENT SHALL PROMPTLY
NOTIFY EACH LENDER THEREOF. SUBJECT TO THE SATISFACTION OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, THE ISSUER SHALL ISSUE EACH REQUESTED LETTER
OF CREDIT. IN THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS
AGREEMENT AND ANY LETTER OF CREDIT DOCUMENTATION, THE PROVISIONS OF THIS
AGREEMENT SHALL CONTROL.
Terms of Letters of Credit. EACH LETTER OF CREDIT SHALL (i) BE DENOMINATED IN
DOLLARS, (ii) BE ISSUED FOR THE ACCOUNT OF THE BORROWER AND IN SUPPORT OF
OBLIGATIONS, CONTINGENT OR OTHERWISE, OF THE BORROWER OR ANY SUBSIDIARY
ARISING IN THE ORDINARY COURSE OF BUSINESS, AND (iii) HAVE AN EXPIRATION DATE
WHICH SHALL BE NOT LATER THAN THE EARLIER OF (A) TWELVE MONTHS AFTER THE DATE
OF ISSUANCE THEREOF OR (B) FIVE
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BUSINESS DAYS BEFORE THE MATURITY DATE, PROVIDED THAT THE EXPIRATION DATE OF
SUCH LETTER OF CREDIT MAY BE EXTENDED OR SUCH LETTER OF CREDIT MAY BE
RENEWED, PROVIDED, FURTHER, THAT ANY RENEWAL, OR ANY EXTENSION OF ANY EXPIRY
DATE, OF A LETTER OF CREDIT SHALL CONSTITUTE THE ISSUANCE OF SUCH LETTER OF
CREDIT FOR ALL PURPOSES OF THIS AGREEMENT.
Letter of Credit Participations. IMMEDIATELY UPON THE ISSUANCE OF A LETTER
OF CREDIT, THE ISSUER SHALL BE DEEMED TO HAVE SOLD AND TRANSFERRED TO EACH
LENDER, AND EACH LENDER SHALL BE DEEMED TO HAVE IRREVOCABLY AND
UNCONDITIONALLY PURCHASED AND RECEIVED FROM THE ISSUER, WITHOUT RECOURSE OR
WARRANTY, AN UNDIVIDED INTEREST AND PARTICIPATION, TO THE EXTENT OF SUCH
LENDER'S REVOLVING PERCENTAGE THEREOF, IN SUCH LETTER OF CREDIT AND THE
OBLIGATIONS OF BORROWER WITH RESPECT THERETO AND ANY SECURITY THEREFOR AND
ANY GUARANTY PERTAINING THERETO AT ANY TIME EXISTING.
Drawings on Letters of Credit. THE ISSUER SHALL PROMPTLY NOTIFY (i) EACH
LENDER OF THE ISSUER'S RECEIPT OF A DRAWING REQUEST UNDER ANY LETTER OF
CREDIT, STATING THE AMOUNT OF SUCH LENDER'S REVOLVING PERCENTAGE OF SUCH
DRAWING REQUEST AND THE DATE ON WHICH SUCH REQUEST WILL BE HONORED AND (ii)
BORROWER OF THE AMOUNT OF SUCH DRAWING REQUEST AND THE DATE ON WHICH SUCH
REQUEST WILL BE HONORED. ANY FAILURE OF THE ISSUER TO GIVE OR ANY DELAY IN
THE ISSUER'S GIVING ANY SUCH NOTICE SHALL NOT RELEASE OR DIMINISH THE
OBLIGATIONS OF BORROWER OR ANY LENDER HEREUNDER. IN DETERMINING WHETHER TO
PAY UNDER ANY LETTER OF CREDIT, THE ISSUER SHALL HAVE NO OBLIGATION TO ANY
LENDER OR THE BORROWER OTHER THAN TO CONFIRM THAT ANY DOCUMENTS REQUIRED TO
BE DELIVERED UNDER SUCH LETTER OF CREDIT HAVE BEEN DELIVERED AND THAT THEY
APPEAR TO COMPLY ON THEIR FACE WITH THE REQUIREMENTS OF SUCH LETTER OF
CREDIT. IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART
OF THE ISSUER, THE ISSUER SHALL HAVE NO LIABILITY TO ANY LENDER OR THE
BORROWER FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY IT UNDER OR IN
CONNECTION WITH ANY LETTER OF CREDIT, INCLUDING ANY SUCH ACTION NEGLIGENTLY
TAKEN OR NEGLIGENTLY OMITTED TO BE TAKEN BY IT.
Reimbursement. THE BORROWER SHALL PAY TO THE ADMINISTRATIVE AGENT FOR THE
ACCOUNT OF THE ISSUER ON DEMAND THEREFOR, IN DOLLARS IN IMMEDIATELY
AVAILABLE FUNDS, THE AMOUNT OF ALL REIMBURSEMENT OBLIGATIONS OWING TO THE
ISSUER UNDER ANY LETTER OF CREDIT, TOGETHER WITH INTEREST THEREON AS
PROVIDED IN SECTION 3.1, IRRESPECTIVE OF ANY CLAIM, SETOFF, DEFENSE OR OTHER
RIGHT WHICH THE BORROWER MAY HAVE AT ANY TIME AGAINST THE ISSUER OR ANY
OTHER PERSON. IN THE EVENT THAT THE ISSUER MAKES ANY PAYMENT UNDER ANY
LETTER OF CREDIT AND BORROWER SHALL NOT HAVE REPAID SUCH AMOUNT TO THE
ISSUER WHEN DUE, THE ISSUER SHALL PROMPTLY NOTIFY EACH LENDER OF SUCH
FAILURE, AND EACH LENDER SHALL PROMPTLY AND UNCONDITIONALLY PAY TO THE
ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF THE ISSUER, THE AMOUNT OF SUCH
LENDER'S REVOLVING Percentage OF SUCH PAYMENT IN DOLLARS IN IMMEDIATELY
AVAILABLE FUNDS ON THE BUSINESS DAY THE ISSUER SO NOTIFIES SUCH LENDER IF
SUCH NOTICE IS GIVEN PRIOR TO 12:00 NOON OR, IF SUCH NOTICE IS GIVEN AFTER
12:00 NOON, SUCH LENDER SHALL MAKE ITS REVOLVING PERCENTAGE OF SUCH PAYMENT
AVAILABLE TO THE ISSUER PRIOR TO 12:00 NOON ON THE NEXT SUCCEEDING BUSINESS
DAY.
Lenders' Obligations. IF AND TO THE EXTENT ANY LENDER SHALL NOT MAKE SUCH
LENDER'S REVOLVING PERCENTAGE OF ANY REIMBURSEMENT OBLIGATIONS AVAILABLE TO
THE ISSUER WHEN DUE IN ACCORDANCE WITH SECTION 2.5(e), SUCH LENDER AGREES TO
PAY INTEREST TO THE ISSUER ON SUCH UNPAID AMOUNT FOR EACH DAY FROM THE DATE
SUCH PAYMENT IS DUE UNTIL THE DATE SUCH AMOUNT IS PAID IN FULL TO THE ISSUER
AT THE FEDERAL FUNDS EFFECTIVE RATE UNTIL (AND INCLUDING) THE THIRD BUSINESS
DAY AFTER THE DATE DUE AND THEREAFTER AT THE ALTERNATE BASE RATE. THE
OBLIGATIONS OF THE LENDERS UNDER THIS SECTION 2.5(f) ARE SEVERAL AND NOT
JOINT OR JOINT AND SEVERAL, AND THE FAILURE OF ANY LENDER TO MAKE AVAILABLE
TO THE ISSUER ITS REVOLVING PERCENTAGE OF ANY REIMBURSEMENT OBLIGATIONS WHEN
DUE IN ACCORDANCE WITH SECTION 2.5(e) SHALL NOT RELIEVE ANY OTHER LENDER OF
ITS OBLIGATION HEREUNDER TO MAKE ITS REVOLVING PERCENTAGE OF SUCH
REIMBURSEMENT OBLIGATIONS SO AVAILABLE WHEN SO DUE, BUT NO LENDER SHALL BE
RESPONSIBLE FOR THE FAILURE OF ANY OTHER LENDER TO MAKE SUCH OTHER LENDER'S
REVOLVING PERCENTAGE OF SUCH REIMBURSEMENT OBLIGATIONS SO AVAILABLE WHEN SO
DUE.
Rescission. WHENEVER THE ISSUER RECEIVES A PAYMENT OF A REIMBURSEMENT
OBLIGATION FROM OR ON BEHALF OF BORROWER AS TO WHICH THE ISSUER HAS RECEIVED
ANY PAYMENT FROM A LENDER PURSUANT TO SECTION 2.5(e), THE ISSUER SHALL
PROMPTLY PAY TO SUCH LENDER AN AMOUNT EQUAL TO SUCH LENDER'S REVOLVING
PERCENTAGE OF SUCH PAYMENT FROM OR ON BEHALF OF BORROWER. IF ANY PAYMENT BY
OR ON BEHALF OF BORROWER AND RECEIVED BY THE ISSUER WITH RESPECT TO ANY
LETTER OF CREDIT IS RESCINDED OR MUST OTHERWISE BE RETURNED BY THE ISSUER
FOR ANY REASON AND THE ISSUER HAS PAID TO ANY LENDER ANY
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PORTION THEREOF, EACH SUCH LENDER SHALL FORTHWITH PAY OVER TO THE ISSUER AN
AMOUNT EQUAL TO SUCH LENDER'S REVOLVING PERCENTAGE OF THE AMOUNT WHICH MUST
BE SO RETURNED BY THE ISSUER.
Expenses. EACH LENDER, UPON THE DEMAND OF THE ISSUER, SHALL REIMBURSE THE
ISSUER, TO THE EXTENT THE ISSUER HAS NOT BEEN REIMBURSED BY BORROWER AFTER
DEMAND THEREFOR, FOR THE REASONABLE COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) INCURRED BY THE ISSUER IN CONNECTION WITH THE COLLECTION OF
AMOUNTS DUE UNDER, AND THE PRESERVATION AND ENFORCEMENT OF ANY RIGHTS
CONFERRED BY, ANY LETTER OF CREDIT OR THE PERFORMANCE OF THE ISSUER'S
OBLIGATIONS AS ISSUER OF THE LETTERS OF CREDIT UNDER THIS AGREEMENT IN
RESPECT THEREOF, TO THE EXTENT OF SUCH LENDER'S REVOLVING PERCENTAGE OF THE
AMOUNT OF SUCH COSTS AND EXPENSES PROVIDED, HOWEVER, THAT NO LENDER SHALL BE
LIABLE FOR THE PAYMENT OF ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR
DISBURSEMENTS TO THE EXTENT THE SAME RESULT SOLELY FROM THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THE ISSUER. THE ISSUER SHALL REFUND ANY COSTS AND
EXPENSES REIMBURSED BY SUCH LENDER THAT ARE SUBSEQUENTLY RECOVERED FROM
BORROWER IN AN AMOUNT EQUAL TO SUCH LENDER'S REVOLVING PERCENTAGE THEREOF.
Obligations Absolute. THE OBLIGATION OF THE BORROWER TO REIMBURSE THE ISSUER
PURSUANT TO THIS SECTION 2.5, AND THE OBLIGATION OF EACH LENDER TO MAKE
AVAILABLE TO THE ISSUER THE AMOUNTS SET FORTH IN THIS SECTION 2.5 SHALL BE
ABSOLUTE, UNCONDITIONAL AND IRREVOCABLE UNDER ANY AND ALL CIRCUMSTANCES,
SHALL BE MADE WITHOUT REDUCTION FOR ANY SET-OFF, COUNTERCLAIM OR OTHER
DEDUCTION OF ANY NATURE WHATSOEVER, MAY NOT BE TERMINATED, SUSPENDED OR
DELAYED FOR ANY REASON WHATSOEVER, SHALL NOT BE SUBJECT TO ANY QUALIFICATION
OR EXCEPTION AND SHALL BE MADE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF
THIS AGREEMENT UNDER ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION, ANY OF
THE FOLLOWING CIRCUMSTANCES: (1) ANY LACK OF VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, (2) THE EXISTENCE OF ANY
CLAIM, SETOFF, DEFENSE OR OTHER RIGHT WHICH BORROWER MAY HAVE AT ANY TIME
AGAINST A BENEFICIARY NAMED IN A LETTER OF CREDIT, ANY TRANSFEREE OF ANY
LETTER OF CREDIT (OR ANY PERSON FOR WHOM ANY SUCH TRANSFEREE MAY BE ACTING),
THE ISSUER, ANY LENDER OR ANY OTHER PERSON, WHETHER IN CONNECTION WITH THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT, ANY LETTER OF CREDIT, THE TRANSACTIONS
CONTEMPLATED IN THE LOAN DOCUMENTS OR ANY UNRELATED TRANSACTIONS (INCLUDING
ANY UNDERLYING TRANSACTION BETWEEN BORROWER AND THE BENEFICIARY NAMED IN ANY
SUCH LETTER OF CREDIT), (3) ANY DRAFT, CERTIFICATE OR ANY OTHER DOCUMENT
PRESENTED UNDER ANY LETTER OF CREDIT PROVING TO BE FORGED, FRAUDULENT,
INVALID OR INSUFFICIENT IN ANY RESPECT OR ANY STATEMENT THEREIN BEING UNTRUE
OR INACCURATE IN ANY RESPECT, (4) THE SURRENDER OR IMPAIRMENT OF ANY
COLLATERAL FOR THE PERFORMANCE OR OBSERVANCE OF ANY OF THE TERMS OF ANY OF
THE LOAN DOCUMENTS, OR (5) THE OCCURRENCE OF ANY DEFAULT OR EVENT OF DEFAULT.
NOTHING CONTAINED IN THIS SECTION 2.5(i), HOWEVER, SHALL REQUIRE THE BORROWER
OR ANY LENDER TO REIMBURSE THE ISSUER FOR ANY AMOUNTS THAT BECOME DUE BY
REASON OF THE ISSUER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
SECTION 2.6. PAYMENTS; PRO RATA TREATMENT AND SHARING OF SET-OFFS
Payments Generally. (i) EXCEPT AS PROVIDED BELOW, ALL PAYMENTS, INCLUDING
PREPAYMENTS, OF PRINCIPAL AND INTEREST ON THE REVOLVING LOANS, OF THE
COMMITMENT FEE, THE LETTER OF CREDIT FEES AND OF ALL OTHER AMOUNTS TO BE
PAID BY THE BORROWER UNDER THE LOAN DOCUMENTS AND ANY FEE LETTER WITH THE
ADMINISTRATIVE AGENT AND/OR THE LENDERS (THE COMMITMENT FEE AND THE LETTER
OF CREDIT FEES, TOGETHER WITH ALL OF SUCH OTHER FEES, BEING SOMETIMES
HEREINAFTER COLLECTIVELY REFERRED TO AS THE "Fees") SHALL BE MADE TO THE
ADMINISTRATIVE AGENT, PRIOR TO 1:00 P.M. ON THE DATE SUCH PAYMENT IS DUE,
FOR THE ACCOUNT OF THE APPLICABLE CREDIT PARTIES AT THE PAYMENT OFFICE, IN
DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, WITHOUT SET-OFF, OFFSET,
RECOUPMENT OR COUNTERCLAIM. THE FAILURE OF THE BORROWER TO MAKE ANY SUCH
PAYMENT BY SUCH TIME SHALL NOT CONSTITUTE A DEFAULT, PROVIDED THAT SUCH
PAYMENT IS MADE ON SUCH DUE DATE, BUT ANY SUCH PAYMENT MADE AFTER 1:00 P.M.
ON SUCH DUE DATE SHALL BE DEEMED TO HAVE BEEN MADE ON THE NEXT BUSINESS DAY
FOR THE PURPOSE OF CALCULATING INTEREST ON AMOUNTS OUTSTANDING ON THE
REVOLVING LOANS. AS BETWEEN THE BORROWER AND EACH CREDIT PARTY, ANY PAYMENT
BY THE BORROWER TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF SUCH CREDIT
PARTY SHALL BE DEEMED TO BE PAYMENT BY THE BORROWER TO SUCH CREDIT PARTY.
NOTWITHSTANDING THE FOREGOING, ALL PAYMENTS PURSUANT TO SECTIONS 3.5, 3.6,
3.7, AND 11.4 SHALL BE PAID DIRECTLY TO THE CREDIT PARTY ENTITLED THERETO.
IF ANY PAYMENT UNDER THE LOAN DOCUMENTS SHALL BE DUE AND PAYABLE ON A DAY
WHICH IS NOT A BUSINESS DAY, THE DUE DATE THEREOF (EXCEPT AS OTHERWISE
PROVIDED WITH RESPECT TO INTEREST PERIODS)
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SHALL BE EXTENDED TO THE NEXT BUSINESS DAY AND (EXCEPT WITH RESPECT TO
PAYMENTS IN RESPECT OF THE FEES) INTEREST SHALL BE PAYABLE AT THE APPLICABLE
RATE SPECIFIED HEREIN DURING SUCH EXTENSION, PROVIDED, HOWEVER, THAT IF SUCH
NEXT BUSINESS DAY WOULD BE AFTER THE MATURITY DATE, SUCH PAYMENT SHALL
INSTEAD BE DUE ON THE IMMEDIATELY PRECEDING BUSINESS DAY.
(ii) If at any time insufficient funds are received
by and available to the Administrative Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall be applied
(A) first, towards payment of interest and fees then due under the Loan
Documents, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (B) second,
towards payment of principal then due under the Loan Documents, ratably
among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
Set-off. IN ADDITION TO ANY RIGHTS AND REMEDIES OF THE CREDIT PARTIES
PROVIDED BY LAW, UPON AND AFTER THE ACCELERATION OF ALL THE OBLIGATIONS OF
THE BORROWER UNDER THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR AT ANY TIME
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT UNDER
SECTIONS 9.1(a) OR (b), EACH CREDIT PARTY SHALL HAVE THE RIGHT, WITHOUT
PRIOR NOTICE TO ANY LOAN PARTY, ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY
EACH LOAN PARTY TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, TO SET-OFF
AND APPLY AGAINST ANY INDEBTEDNESS, WHETHER MATURED OR UNMATURED, OF SUCH
LOAN PARTY TO SUCH CREDIT PARTY ANY AMOUNT OWING FROM SUCH CREDIT PARTY TO
SUCH LOAN PARTY, AT, OR AT ANY TIME AFTER, THE HAPPENING OF ANY OF THE
ABOVE-MENTIONED EVENTS. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE
AFORESAID RIGHT OF SET-OFF MAY BE EXERCISED BY ANY CREDIT PARTY AGAINST SUCH
LOAN PARTY OR AGAINST ANY TRUSTEE IN BANKRUPTCY, CUSTODIAN, DEBTOR IN
POSSESSION, ASSIGNEE FOR THE BENEFIT OF CREDITORS, RECEIVER, OR EXECUTION,
JUDGMENT OR ATTACHMENT CREDITOR OF SUCH LOAN PARTY, OR AGAINST ANYONE ELSE
CLAIMING THROUGH OR AGAINST SUCH LOAN PARTY, OR SUCH TRUSTEE IN BANKRUPTCY,
CUSTODIAN, DEBTOR IN POSSESSION, ASSIGNEE FOR THE BENEFIT OF CREDITORS,
RECEIVER, OR EXECUTION, JUDGMENT OR ATTACHMENT CREDITOR, NOTWITHSTANDING THE
FACT THAT SUCH RIGHT OF SET-OFF SHALL NOT HAVE BEEN EXERCISED BY SUCH CREDIT
PARTY PRIOR TO THE MAKING, FILING OR ISSUANCE, OR SERVICE UPON SUCH CREDIT
PARTY OF, OR OF NOTICE OF, ANY SUCH PETITION, ASSIGNMENT FOR THE BENEFIT OF
CREDITORS, APPOINTMENT OR APPLICATION FOR THE APPOINTMENT OF A RECEIVER, OR
ISSUANCE OF EXECUTION, SUBPOENA, ORDER OR WARRANT. EACH CREDIT PARTY AGREES
PROMPTLY TO NOTIFY THE BORROWER AND THE ADMINISTRATIVE AGENT AFTER ANY SUCH
SET-OFF AND APPLICATION MADE BY SUCH CREDIT PARTY, PROVIDED THAT THE FAILURE
TO GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SET-OFF AND
APPLICATION.
Adjustments. IF ANY LENDER SHALL OBTAIN ANY PAYMENT (WHETHER VOLUNTARY,
INVOLUNTARY, THROUGH THE EXERCISE OF ANY RIGHT OF SET-OFF, OR OTHERWISE) IN
RESPECT OF THE PRINCIPAL OF OR INTEREST ON ITS REVOLVING LOANS, RESULTING IN
SUCH LENDER RECEIVING PAYMENT OF A GREATER PROPORTION OF THE AGGREGATE
PRINCIPAL AMOUNT OF, OR ACCRUED INTEREST ON, SUCH REVOLVING LOAN THAN THE
PROPORTION RECEIVED BY ANY OTHER LENDER, THEN THE LENDER RECEIVING SUCH
GREATER PROPORTION SHALL PROMPTLY PURCHASE, AT FACE VALUE FOR CASH,
PARTICIPATIONS IN THE REVOLVING LOANS TO THE EXTENT NECESSARY SO THAT THE
BENEFIT OF SUCH PAYMENT SHALL BE SHARED BY THE LENDERS RATABLY IN ACCORDANCE
WITH THE AGGREGATE AMOUNT OF PRINCIPAL OF AND ACCRUED INTEREST ON THEIR
REVOLVING LOANS, PROVIDED, HOWEVER, THAT (d) IF ALL OR ANY PORTION OF SUCH
PAYMENT IS THEREAFTER RECOVERED, SUCH PARTICIPATIONS SHALL BE RESCINDED AND
THE PURCHASE PRICE RETURNED, IN EACH CASE TO THE EXTENT OF SUCH RECOVERY,
AND (e) THE PROVISIONS OF THIS SECTION 2.6(c) SHALL NOT BE CONSTRUED TO
APPLY TO ANY PAYMENT MADE BY THE BORROWER PURSUANT TO AND IN ACCORDANCE WITH
THE EXPRESS TERMS OF THIS AGREEMENT OR ANY PAYMENT OBTAINED BY A LENDER AS
CONSIDERATION FOR THE ASSIGNMENT OF OR SALE OF A PARTICIPATION IN ANY OF ITS
REVOLVING LOANS TO ANY ASSIGNEE OR PARTICIPANT, OTHER THAN TO THE BORROWER
OR ANY SUBSIDIARY OR AFFILIATE THEREOF (AS TO WHICH THE PROVISIONS OF THIS
SECTION 2.6(c) SHALL APPLY). THE BORROWER AGREES THAT ANY LENDER THAT
PURCHASED A PARTICIPATION PURSUANT TO THIS SUBSECTION MAY EXERCISE SUCH
RIGHTS TO PAYMENT (INCLUDING THE RIGHT OF SET-OFF) WITH RESPECT TO SUCH
PARTICIPATION AS FULLY AS SUCH LENDER WERE THE DIRECT CREDITOR OF THE
BORROWER IN THE AMOUNT OF SUCH PARTICIPATION.
SECTION 2.7. CASH COLLATERAL ACCOUNT
At, or at any time before, the time the Borrower shall be
required to make a deposit into the Cash Collateral Account, the Administrative
Agent shall establish and maintain at its offices at Xxx Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx in the name of the Borrower but under the sole dominion and control of
the Administrative Agent, a cash collateral account designated as "Global
Vacation Group, Inc./Cash
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Collateral Account" (the "CASH COLLATERAL ACCOUNT"). The Borrower may from
time to time make one or more deposits into the Cash Collateral Account. The
Borrower hereby pledges to the Administrative Agent for the benefit of the
Credit Parties, a Lien on and security interest in the Cash Collateral
Account and all sums at any time and from time to time on deposit therein
(the Cash Collateral Account, together with all sums on deposit therein,
being sometimes hereinafter collectively referred to as the "CASH
COLLATERAL"), as collateral security for the prompt payment in full when
due, whether at stated maturity, by acceleration or otherwise, of the
Borrower Obligations. The Borrower agrees that at any time and from time to
time at its expense, it will promptly execute and deliver to the
Administrative Agent any further instruments and documents, and take any
further actions, that may be necessary or that the Administrative Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Administrative
Agent to exercise and enforce its rights and remedies hereunder with respect
to any Cash Collateral. The Borrower agrees that it will not (i) sell or
otherwise dispose of any of the Cash Collateral, or (ii) create or permit to
exist any Lien upon any of the Cash Collateral, except for Permitted Liens.
The Borrower hereby authorizes the Administrative Agent, promptly after each
drawing under any Letter of Credit shall become due and payable, to apply
any and all cash on deposit in the Cash Collateral Account towards the
reimbursement of the Issuer for all sums paid in respect of such drawing,
and all other Borrower Obligations which shall then be due and owing.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
SECTION 3.1. INTEREST RATE AND PAYMENT DATES
Advances. EACH (i) ABR ADVANCE SHALL BEAR INTEREST AT A RATE PER ANNUM EQUAL
TO THE ALTERNATE BASE RATE PLUS THE APPLICABLE MARGIN AND (ii) EURODOLLAR
ADVANCE SHALL BEAR INTEREST AT A RATE PER ANNUM EQUAL TO THE EURODOLLAR RATE
FOR THE APPLICABLE INTEREST PERIOD PLUS THE APPLICABLE MARGIN.
Event of Default; Late Charges. NOTWITHSTANDING THE FOREGOING, AFTER THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, THE
OUTSTANDING PRINCIPAL BALANCE OF THE REVOLVING LOANS SHALL BEAR INTEREST AT
A RATE PER ANNUM EQUAL TO 2% PLUS THE RATE OTHERWISE APPLICABLE TO SUCH
REVOLVING LOANS AS PROVIDED IN SUBSECTION (a) ABOVE. IF ANY INTEREST,
REIMBURSEMENT OBLIGATION, FEE OR OTHER AMOUNT PAYABLE UNDER THE LOAN
DOCUMENTS IS NOT PAID WHEN DUE (WHETHER AT THE STATED MATURITY THEREOF, BY
ACCELERATION OR OTHERWISE), SUCH OVERDUE AMOUNT SHALL BEAR INTEREST AT A
RATE PER ANNUM EQUAL TO THE ALTERNATE BASE RATE PLUS 2%, FROM THE DATE OF
SUCH NONPAYMENT UNTIL PAID IN FULL (WHETHER BEFORE OR AFTER THE ENTRY OF A
JUDGMENT THEREON). ALL SUCH INTEREST SHALL BE PAYABLE ON DEMAND.
Payment of Interest. EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (b) ABOVE,
INTEREST SHALL BE PAYABLE IN ARREARS ON THE FOLLOWING DATES AND UPON EACH
PAYMENT (INCLUDING PREPAYMENT) OF THE REVOLVING LOANS:
in the case of an ABR Advance, on the last Business Day of each month
commencing on the first of such days to occur after such ABR Advance is made
or any Eurodollar Advance is converted to an ABR Advance;
in the case of a Eurodollar Advance, on the last day of the Interest
Period applicable thereto and, if such Interest Period is longer than one
month, the last Business Day of each one month interval occurring during
such Interest Period; and
in the case of all Revolving Loans, the Maturity Date.
Computations. INTEREST ON (i) ABR ADVANCES TO THE EXTENT BASED ON THE PRIME
RATE SHALL BE CALCULATED ON THE BASIS OF A 365 OR 366-DAY YEAR (AS THE CASE
MAY BE), AND (ii) ABR ADVANCES TO THE EXTENT BASED ON THE FEDERAL FUNDS
EFFECTIVE RATE AND ON EURODOLLAR ADVANCES SHALL BE CALCULATED ON THE BASIS
OF A 360-DAY YEAR, IN EACH CASE, FOR THE ACTUAL NUMBER OF DAYS ELAPSED. THE
ADMINISTRATIVE AGENT SHALL, AS SOON AS PRACTICABLE, NOTIFY THE BORROWER AND
THE LENDERS OF THE EFFECTIVE DATE AND THE AMOUNT OF EACH SUCH CHANGE IN THE
PRIME RATE, BUT ANY FAILURE TO SO NOTIFY SHALL NOT IN ANY MANNER AFFECT THE
OBLIGATION OF THE BORROWER TO PAY INTEREST ON THE REVOLVING LOANS IN THE
AMOUNTS AND ON THE DATES REQUIRED. EACH DETERMINATION OF A RATE OF INTEREST
BY THE ADMINISTRATIVE AGENT PURSUANT TO THE LOAN DOCUMENTS SHALL BE
CONCLUSIVE AND BINDING ON ALL PARTIES HERETO ABSENT MANIFEST ERROR. THE
BORROWER ACKNOWLEDGES THAT TO THE EXTENT INTEREST PAYABLE ON ABR ADVANCES IS
BASED ON THE PRIME RATE, SUCH RATE IS ONLY ONE OF THE BASES FOR COMPUTING
INTEREST ON LOANS MADE BY THE LENDERS, AND BY BASING INTEREST PAYABLE ON ABR
ADVANCES ON THE PRIME RATE, THE LENDERS HAVE NOT COMMITTED TO
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CHARGE, AND THE BORROWER HAS NOT IN ANY WAY BARGAINED FOR, INTEREST BASED ON
A LOWER OR THE LOWEST RATE AT WHICH THE LENDERS MAY NOW OR IN THE FUTURE
MAKE LOANS TO OTHER BORROWERS.
SECTION 3.2. FEES
Commitment Fee. THE BORROWER AGREES TO PAY TO THE ADMINISTRATIVE AGENT, FOR
THE ACCOUNT OF THE LENDERS IN ACCORDANCE WITH SUCH LENDER'S REVOLVING
PERCENTAGE, FEES (COLLECTIVELY, THE "Commitment Fee"), DURING THE PERIOD
FROM THE SECOND RESTATEMENT DATE THROUGH THE COMMITMENT TERMINATION DATE, AT
A RATE PER ANNUM EQUAL TO THE APPLICABLE MARGIN ON THE SUM OF THE AVERAGE
DAILY UNUSED AGGREGATE REVOLVING COMMITMENT. THE COMMITMENT FEE SHALL BE
PAYABLE (A) QUARTERLY IN ARREARS ON THE LAST BUSINESS DAY OF EACH MARCH,
JUNE, SEPTEMBER AND DECEMBER DURING SUCH PERIOD, (B) ON THE DATE OF ANY
REDUCTION IN THE AGGREGATE REVOLVING COMMITMENT (TO THE EXTENT OF SUCH
REDUCTION) AND (C) ON THE MATURITY DATE. THE COMMITMENT FEE SHALL BE
CALCULATED ON THE BASIS OF A 360-DAY YEAR FOR THE ACTUAL NUMBER OF DAYS
ELAPSED.
Letter of Credit Fees. THE BORROWER AGREES TO PAY TO THE ADMINISTRATIVE
AGENT, FOR THE ACCOUNT OF THE LENDERS IN ACCORDANCE WITH EACH LENDER'S
REVOLVING PERCENTAGE, COMMISSIONS (THE "Letter of Credit Fees") WITH RESPECT
TO THE LETTERS OF CREDIT FOR THE PERIOD FROM AND INCLUDING THE DATE OF
ISSUANCE OF EACH THEREOF THROUGH THE EXPIRATION DATE THEREOF, AT A RATE PER
ANNUM EQUAL TO THE APPLICABLE MARGIN ON THE AVERAGE DAILY MAXIMUM AMOUNT
AVAILABLE UNDER ANY CONTINGENCY TO BE DRAWN UNDER SUCH LETTER OF CREDIT.
THE LETTER OF CREDIT FEES SHALL BE (i) CALCULATED ON THE BASIS OF A 360-DAY
YEAR FOR THE ACTUAL NUMBER OF DAYS ELAPSED AND (ii) PAYABLE QUARTERLY IN
ARREARS ON THE LAST BUSINESS DAY OF EACH MARCH, JUNE, SEPTEMBER AND DECEMBER
OF EACH YEAR, AND ON THE DATE THAT THE REVOLVING COMMITMENTS SHALL EXPIRE.
IN ADDITION TO THE LETTER OF CREDIT FEES, THE BORROWER AGREES TO PAY TO THE
ISSUER, FOR ITS OWN ACCOUNT, ITS STANDARD FEES AND CHARGES CUSTOMARILY
CHARGED TO CUSTOMERS SIMILAR TO THE BORROWER WITH RESPECT TO ANY LETTER OF
CREDIT.
Other Fees. THE BORROWER AGREES TO PAY TO (i) THE ADMINISTRATIVE AGENT AND
THE ISSUER, FOR THEIR OWN RESPECTIVE ACCOUNTS, SUCH OTHER FEES AS HAVE BEEN
AGREED TO IN WRITING BY THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
ISSUER AND (ii) TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE LENDERS,
SUCH OTHER FEES AS HAVE BEEN AGREED TO IN WRITING BY THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS.
SECTION 3.3. CONVERSIONS
THE BORROWER MAY ELECT FROM TIME TO TIME TO CONVERT ONE OR MORE EURODOLLAR
ADVANCES TO ABR ADVANCES BY GIVING THE ADMINISTRATIVE AGENT AT LEAST ONE
BUSINESS DAY'S PRIOR IRREVOCABLE NOTICE OF SUCH ELECTION, SPECIFYING THE
AMOUNT TO BE CONVERTED, PROVIDED, THAT ANY SUCH CONVERSION OF EURODOLLAR
ADVANCES SHALL ONLY BE MADE ON THE LAST DAY OF THE INTEREST PERIOD
APPLICABLE THERETO. IN ADDITION, THE BORROWER MAY ELECT FROM TIME TO TIME TO
(i) CONVERT ABR ADVANCES COMPRISING ALL OR A PORTION OF REVOLVING LOANS TO
EURODOLLAR ADVANCES AND (ii) CONTINUE EURODOLLAR ADVANCES AS NEW EURODOLLAR
ADVANCES BY SELECTING A NEW INTEREST PERIOD THEREFOR, IN EACH CASE BY GIVING
THE ADMINISTRATIVE AGENT AT LEAST THREE BUSINESS DAYS' PRIOR IRREVOCABLE
NOTICE OF SUCH ELECTION, IN THE CASE OF A CONVERSION TO, OR CONTINUATION OF,
EURODOLLAR ADVANCES, SPECIFYING THE AMOUNT TO BE SO CONVERTED OR CONTINUED
AND THE INITIAL INTEREST PERIOD RELATING THERETO, PROVIDED THAT ANY SUCH
CONVERSION OF ABR ADVANCES TO EURODOLLAR ADVANCES SHALL ONLY BE MADE ON A
BUSINESS DAY AND ANY SUCH CONTINUATION OF EURODOLLAR ADVANCES AS NEW
EURODOLLAR ADVANCES SHALL ONLY BE MADE ON THE LAST DAY OF THE INTEREST
PERIOD APPLICABLE TO THE EURODOLLAR ADVANCES WHICH ARE TO BE CONTINUED AS
SUCH NEW EURODOLLAR ADVANCES. EACH SUCH NOTICE (A "Notice of Conversion")
SHALL BE SUBSTANTIALLY IN THE FORM OF EXHIBIT C, SHALL BE IRREVOCABLE AND
SHALL BE GIVEN BY FACSIMILE (CONFIRMED PROMPTLY, AND IN ANY EVENT WITHIN
FIVE BUSINESS DAYS, BY THE DELIVERY TO THE ADMINISTRATIVE AGENT OF A NOTICE
OF CONVERSION MANUALLY SIGNED BY THE BORROWER). THE ADMINISTRATIVE AGENT
SHALL PROMPTLY PROVIDE THE LENDERS WITH NOTICE OF EACH SUCH ELECTION.
ADVANCES MAY BE CONVERTED OR CONTINUED PURSUANT TO THIS SECTION IN WHOLE OR
IN PART, PROVIDED THAT THE AMOUNT TO BE CONVERTED TO, OR CONTINUED AS, EACH
EURODOLLAR ADVANCE, WHEN AGGREGATED WITH ANY EURODOLLAR ADVANCE TO BE MADE
ON SUCH DATE IN ACCORDANCE WITH SECTION 2.2 AND HAVING THE SAME INTEREST
PERIOD AS SUCH FIRST EURODOLLAR ADVANCE, SHALL EQUAL THE MINIMUM AMOUNT.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, UPON THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, THE BORROWER
SHALL HAVE NO RIGHT TO ELECT TO CONVERT ANY EXISTING
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ABR ADVANCE TO A NEW EURODOLLAR ADVANCE OR TO CONTINUE ANY EXISTING
EURODOLLAR ADVANCE AS A NEW EURODOLLAR ADVANCE. IN SUCH EVENT, ALL ABR
ADVANCES SHALL BE AUTOMATICALLY CONTINUED AS ABR ADVANCES AND ALL EURODOLLAR
ADVANCES SHALL BE AUTOMATICALLY CONVERTED TO ABR ADVANCES ON THE LAST DAY OF
THE INTEREST PERIOD APPLICABLE TO SUCH EURODOLLAR ADVANCE.
EACH CONVERSION OR CONTINUATION SHALL BE EFFECTED BY EACH LENDER BY APPLYING
THE PROCEEDS OF ITS NEW ABR ADVANCE OR EURODOLLAR ADVANCE, AS THE CASE MAY
BE, TO ITS ADVANCES (OR PORTION THEREOF) BEING CONVERTED (IT BEING
UNDERSTOOD THAT ANY SUCH CONVERSION OR CONTINUATION SHALL NOT CONSTITUTE A
BORROWING FOR PURPOSES OF ARTICLES 4, 5 OR 6).
SECTION 3.4. CONCERNING INTEREST PERIODS
NO INTEREST PERIOD IN RESPECT OF A EURODOLLAR ADVANCE SHALL END AFTER THE
COMMITMENT TERMINATION DATE.
WITH RESPECT TO EURODOLLAR ADVANCES, ANY INTEREST PERIOD WHICH BEGINS ON THE
LAST BUSINESS DAY OF A CALENDAR MONTH (OR ON A DAY FOR WHICH THERE IS NO
NUMERICALLY CORRESPONDING DAY IN THE CALENDAR MONTH AT THE END OF SUCH
INTEREST PERIOD) SHALL END ON THE LAST BUSINESS DAY OF A CALENDAR MONTH. IF
AN INTEREST PERIOD WOULD OTHERWISE END ON A DAY WHICH IS NOT A BUSINESS DAY,
SUCH INTEREST PERIOD SHALL BE EXTENDED TO THE NEXT SUCCEEDING BUSINESS DAY,
UNLESS, IN THE CASE OF A INTEREST PERIOD, THE RESULT OF SUCH EXTENSION WOULD
BE TO CARRY SUCH INTEREST PERIOD INTO ANOTHER CALENDAR MONTH, IN WHICH EVENT
SUCH INTEREST PERIOD SHALL END ON THE IMMEDIATELY PRECEDING BUSINESS DAY.
IF THE BORROWER SHALL HAVE FAILED TO TIMELY ELECT A EURODOLLAR ADVANCE UNDER
SECTION 2.2 OR 3.3, AS THE CASE MAY BE, IN CONNECTION WITH ANY BORROWING OF,
CONVERSION TO, OR CONTINUATION OF, A EURODOLLAR ADVANCE, SUCH BORROWING OR
SUCH ADVANCE REQUESTED TO BE CONVERTED TO, OR CONTINUED AS, A EURODOLLAR
ADVANCE SHALL THEREAFTER BE AN ABR ADVANCE UNTIL SUCH TIME, IF ANY, AS THE
BORROWER SHALL ELECT A NEW EURODOLLAR ADVANCE PURSUANT TO SECTION 3.3.
THE BORROWER SHALL NOT BE PERMITTED TO HAVE MORE THAN EIGHT EURODOLLAR
ADVANCES OUTSTANDING AT ANY ONE TIME, IT BEING AGREED THAT EACH BORROWING OF
A EURODOLLAR ADVANCE PURSUANT TO A SINGLE CREDIT REQUEST SHALL CONSTITUTE THE
MAKING OF ONE EURODOLLAR ADVANCE FOR THE PURPOSE OF CALCULATING SUCH
LIMITATION.
SECTION 3.5. FUNDING LOSS
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow, convert or continue a Eurodollar Advance
on a Borrowing Date or Conversion Date after it shall have given notice to
do so in which it shall have requested a Eurodollar Advance, or if a
Eurodollar Advance shall be terminated for any reason prior to the last day
of the Interest Period applicable thereto, or if, while a Eurodollar Advance
is outstanding, any repayment or prepayment of such Eurodollar Advance is
made for any reason (including as a result of acceleration or illegality) on
a date which is prior to the last day of the Interest Period applicable
thereto, the Borrower agrees to indemnify each Lender against, and to pay on
demand directly to such Lender the amount (calculated by such Lender using
any reasonable method chosen by such Lender which is customarily used by
such Lender for such purpose) equal to any loss or out-of-pocket expense
suffered by such Lender as a result of such failure to borrow convert, or
continue, or such termination, repayment or prepayment, including any loss,
cost or expense suffered by such Lender in liquidating or employing deposits
acquired to fund or maintain the funding of such Eurodollar Advance or
redeploying funds prepaid or repaid, in amounts which correspond to such
Eurodollar Advance and any reasonable internal processing charge customarily
charged by such Lender in connection therewith.
SECTION 3.6. INCREASED COSTS; ILLEGALITY, ETC.
Increased Costs. IF ANY CHANGE IN LAW SHALL IMPOSE, MODIFY OR MAKE
APPLICABLE ANY RESERVE, SPECIAL DEPOSIT, COMPULSORY LOAN, ASSESSMENT,
INCREASED COST OR SIMILAR REQUIREMENT AGAINST ASSETS HELD BY, OR DEPOSITS
OF, OR ADVANCES OR LOANS BY, OR OTHER CREDIT EXTENDED BY, OR ANY OTHER
ACQUISITION OF FUNDS BY, ANY OFFICE OF ANY CREDIT PARTY IN RESPECT OF ITS
EURODOLLAR ADVANCES WHICH IS NOT OTHERWISE INCLUDED IN THE DETERMINATION OF
A EURODOLLAR RATE OR AGAINST ANY LETTERS OF CREDIT ISSUED HEREUNDER AND THE
RESULT THEREOF IS TO INCREASE THE COST TO ANY CREDIT PARTY OF MAKING,
RENEWING, CONVERTING OR MAINTAINING ITS EURODOLLAR ADVANCES OR ITS
COMMITMENT TO MAKE SUCH EURODOLLAR ADVANCES, OR TO REDUCE ANY AMOUNT
RECEIVABLE UNDER THE LOAN DOCUMENTS IN RESPECT OF ITS EURODOLLAR ADVANCES,
OR TO INCREASE THE COST TO ANY CREDIT PARTY OF ISSUING OR MAINTAINING THE
LETTERS OF CREDIT OR
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PARTICIPATING THEREIN, AS THE CASE MAY BE, OR THE COST TO ANY CREDIT PARTY
OF PERFORMING ITS RESPECTIVE FUNCTIONS HEREUNDER WITH RESPECT TO THE LETTERS
OF CREDIT, THEN, IN ANY SUCH CASE, THE BORROWER SHALL PAY SUCH CREDIT PARTY
SUCH ADDITIONAL AMOUNTS AS IS SUFFICIENT TO COMPENSATE SUCH CREDIT PARTY FOR
SUCH ADDITIONAL COST OR REDUCTION IN SUCH AMOUNT RECEIVABLE WHICH SUCH
CREDIT PARTY DEEMS TO BE MATERIAL AS DETERMINED BY SUCH CREDIT PARTY;
PROVIDED, HOWEVER, THAT THE BORROWER SHALL NOT BE RESPONSIBLE FOR COSTS
UNDER THIS SECTION 3.6(a) ARISING MORE THAN 90 DAYS PRIOR TO RECEIPT BY THE
BORROWER OF THE CERTIFICATE FROM THE AFFECTED CREDIT PARTY PURSUANT TO
SECTION 3.6(e) WITH RESPECT TO SUCH COSTS.
Capital Adequacy. IF ANY CREDIT PARTY DETERMINES THAT ANY CHANGE IN LAW
RELATING TO CAPITAL REQUIREMENTS HAS OR WOULD HAVE THE EFFECT OF REDUCING
THE RATE OF RETURN ON SUCH CREDIT PARTY'S CAPITAL OR ON THE CAPITAL OF SUCH
CREDIT PARTY'S HOLDING COMPANY, IF ANY, ON THE EXTENSIONS OF CREDIT TO A
LEVEL BELOW THAT WHICH SUCH CREDIT PARTY (OR ITS HOLDING COMPANY) WOULD HAVE
ACHIEVED OR WOULD THEREAFTER BE ABLE TO ACHIEVE BUT FOR SUCH CHANGE IN LAW
(AFTER TAKING INTO ACCOUNT SUCH CREDIT PARTY'S (OR SUCH HOLDING COMPANY'S)
POLICIES REGARDING CAPITAL ADEQUACY), THE BORROWER SHALL PAY TO SUCH CREDIT
PARTY (OR SUCH HOLDING COMPANY) SUCH ADDITIONAL AMOUNT OR AMOUNTS AS WILL
COMPENSATE SUCH CREDIT PARTY (OR SUCH HOLDING COMPANY) FOR SUCH REDUCTION.
Illegality. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IF ANY LENDER SHALL
REASONABLY DETERMINE THAT ANY LAW, REGULATION, TREATY OR DIRECTIVE, OR ANY
CHANGE THEREIN OR IN THE INTERPRETATION OR APPLICATION THEREOF, SHALL MAKE
IT UNLAWFUL FOR SUCH LENDER TO MAKE OR MAINTAIN ANY EURODOLLAR ADVANCE AS
CONTEMPLATED BY THIS AGREEMENT, SUCH LENDER SHALL PROMPTLY NOTIFY THE
BORROWER AND THE ADMINISTRATIVE AGENT THEREOF, AND (i) THE COMMITMENT OF
SUCH LENDER TO MAKE SUCH EURODOLLAR ADVANCES OR CONVERT ABR ADVANCES TO
EURODOLLAR ADVANCES SHALL FORTHWITH BE SUSPENDED, (ii) SUCH LENDER SHALL
FUND ITS PORTION OF EACH REQUESTED EURODOLLAR ADVANCE AS AN ABR ADVANCE AND
(iii) SUCH LENDER'S REVOLVING LOANS THEN OUTSTANDING AS SUCH EURODOLLAR
ADVANCES, IF ANY, SHALL BE CONVERTED AUTOMATICALLY TO ABR ADVANCES ON THE
LAST DAY OF THE THEN CURRENT INTEREST PERIOD APPLICABLE THERETO OR AT SUCH
EARLIER TIME AS MAY BE REQUIRED BY LAW. THE COMMITMENT OF ANY SUCH LENDER
WITH RESPECT TO EURODOLLAR ADVANCES SHALL BE SUSPENDED UNTIL SUCH LENDER
SHALL NOTIFY THE ADMINISTRATIVE AGENT AND THE BORROWER THAT THE
CIRCUMSTANCES CAUSING SUCH SUSPENSION NO LONGER EXIST. UPON RECEIPT OF SUCH
NOTICE BY EACH OF THE ADMINISTRATIVE AGENT AND THE BORROWER, SUCH LENDER'S
COMMITMENT TO MAKE OR MAINTAIN EURODOLLAR ADVANCES SHALL BE REINSTATED.
Substituted Interest Rate. IN THE EVENT THAT (i) THE ADMINISTRATIVE AGENT
SHALL HAVE DETERMINED (WHICH DETERMINATION SHALL BE CONCLUSIVE AND BINDING
UPON THE BORROWER) THAT BY REASON OF CIRCUMSTANCES AFFECTING THE INTERBANK
EURODOLLAR MARKET EITHER ADEQUATE AND REASONABLE MEANS DO NOT EXIST FOR
ASCERTAINING THE EURODOLLAR RATE APPLICABLE PURSUANT TO SECTION 3.1 OR (ii)
THE REQUIRED LENDERS SHALL HAVE NOTIFIED THE ADMINISTRATIVE AGENT THAT THEY
HAVE DETERMINED (WHICH DETERMINATION SHALL BE CONCLUSIVE AND BINDING ON THE
BORROWER) THAT THE APPLICABLE EURODOLLAR RATE WILL NOT ADEQUATELY AND FAIRLY
REFLECT THE COST TO SUCH LENDERS OF MAINTAINING OR FUNDING LOANS BEARING
INTEREST BASED ON SUCH EURODOLLAR RATE, WITH RESPECT TO ANY PORTION OF THE
REVOLVING LOANS THAT THE BORROWER HAS REQUESTED BE MADE AS EURODOLLAR
ADVANCES OR EURODOLLAR ADVANCES THAT WILL RESULT FROM THE REQUESTED
CONVERSION OR CONTINUATION OF ANY PORTION OF THE ADVANCES INTO OR OF
EURODOLLAR ADVANCES (EACH, AN "Affected Advance"), THE ADMINISTRATIVE AGENT
SHALL PROMPTLY NOTIFY THE BORROWER AND THE LENDERS (BY TELEPHONE OR
OTHERWISE, TO BE PROMPTLY CONFIRMED IN WRITING) OF SUCH DETERMINATION, ON
OR, TO THE EXTENT PRACTICABLE, PRIOR TO THE REQUESTED BORROWING DATE OR
CONVERSION DATE FOR SUCH AFFECTED ADVANCES. IF THE ADMINISTRATIVE AGENT
SHALL GIVE SUCH NOTICE, (a) ANY AFFECTED ADVANCES SHALL BE MADE AS ABR
ADVANCES, (b) THE ADVANCES (OR ANY PORTION THEREOF) THAT WERE TO HAVE BEEN
CONVERTED TO AFFECTED ADVANCES SHALL BE CONVERTED TO ABR ADVANCES AND (c)
ANY OUTSTANDING AFFECTED ADVANCES SHALL BE CONVERTED, ON THE LAST DAY OF THE
THEN CURRENT INTEREST PERIOD WITH RESPECT THERETO, TO ABR ADVANCES. UNTIL
ANY NOTICE UNDER CLAUSES (i) OR (ii), AS THE CASE MAY BE, OF THIS SECTION
HAS BEEN WITHDRAWN BY THE ADMINISTRATIVE AGENT (BY NOTICE TO THE BORROWER
PROMPTLY UPON EITHER (x) THE ADMINISTRATIVE AGENT HAVING DETERMINED THAT
SUCH CIRCUMSTANCES AFFECTING THE INTERBANK EURODOLLAR MARKET NO LONGER EXIST
AND THAT ADEQUATE AND REASONABLE MEANS DO EXIST FOR DETERMINING THE
EURODOLLAR RATE PURSUANT TO SECTION 3.1 OR (y) THE ADMINISTRATIVE AGENT
HAVING BEEN NOTIFIED BY SUCH REQUIRED LENDERS THAT CIRCUMSTANCES NO LONGER
RENDER THE ADVANCES (OR ANY PORTION
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THEREOF) AFFECTED ADVANCES), NO FURTHER EURODOLLAR ADVANCES SHALL BE
REQUIRED TO BE MADE BY THE LENDERS, NOR SHALL THE BORROWER HAVE THE RIGHT TO
CONVERT ALL OR ANY PORTION OF THE REVOLVING LOANS TO OR AS EURODOLLAR
ADVANCES.
Payment; Certificates. EACH PAYMENT PURSUANT TO SUBSECTIONS (a) OR (b) ABOVE
SHALL BE MADE WITHIN 10 DAYS AFTER DEMAND THEREFOR, WHICH DEMAND SHALL BE
ACCOMPANIED BY A CERTIFICATE OF THE CREDIT PARTY DEMANDING SUCH PAYMENT
SETTING FORTH THE CALCULATIONS OF THE ADDITIONAL AMOUNTS PAYABLE PURSUANT
THERETO. EACH SUCH CERTIFICATE SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR.
SUBJECT TO THE PROVISIONS OF SECTION 3.6(a), NO FAILURE BY ANY CREDIT PARTY
TO DEMAND, AND NO DELAY IN DEMANDING, COMPENSATION FOR ANY INCREASED COST
SHALL CONSTITUTE A WAIVER OF ITS RIGHT TO DEMAND SUCH COMPENSATION AT ANY
TIME.
SECTION 3.7. TAXES
Payments Free of Taxes. ALL PAYMENTS BY OR ON ACCOUNT OF THE BORROWER UNDER
ANY LOAN DOCUMENT TO OR FOR THE ACCOUNT OF A CREDIT PARTY SHALL BE MADE FREE
AND CLEAR OF, AND WITHOUT ANY DEDUCTION OR WITHHOLDING FOR OR ON ACCOUNT OF,
ANY AND ALL PRESENT OR FUTURE INDEMNIFIED TAXES OR OTHER TAXES, PROVIDED
THAT IF THE BORROWER OR ANY OTHER PERSON IS REQUIRED BY ANY LAW, RULE,
REGULATION, ORDER, DIRECTIVE, TREATY OR GUIDELINE TO MAKE ANY DEDUCTION OR
WITHHOLDING IN RESPECT OF SUCH INDEMNIFIED TAX OR OTHER TAX FROM ANY AMOUNT
REQUIRED TO BE PAID BY THE BORROWER TO OR ON BEHALF OF ANY CREDIT PARTY
UNDER ANY LOAN DOCUMENT (EACH A "Required Payment"), THEN (i) THE BORROWER
SHALL NOTIFY THE ADMINISTRATIVE AGENT AND SUCH CREDIT PARTY OF ANY SUCH
REQUIREMENT OR ANY CHANGE IN ANY SUCH REQUIREMENT AS SOON AS THE BORROWER
BECOMES AWARE THEREOF, (ii) THE BORROWER SHALL PAY SUCH INDEMNIFIED TAX OR
OTHER TAX PRIOR TO THE DATE ON WHICH PENALTIES ATTACH THERETO, SUCH PAYMENT
TO BE MADE (TO THE EXTENT THAT THE LIABILITY TO PAY IS IMPOSED ON THE
BORROWER) FOR ITS OWN ACCOUNT OR (TO THE EXTENT THAT THE LIABILITY TO PAY IS
IMPOSED ON SUCH CREDIT PARTY) ON BEHALF AND IN THE NAME OF SUCH CREDIT
PARTY, (iii) THE BORROWER SHALL PAY TO SUCH CREDIT PARTY AN ADDITIONAL
AMOUNT SUCH THAT SUCH CREDIT PARTY SHALL RECEIVE ON THE DUE DATE THEREFOR AN
AMOUNT EQUAL TO THE REQUIRED PAYMENT HAD NO SUCH DEDUCTION OR WITHHOLDING
BEEN MADE OR REQUIRED, AND (iv) THE BORROWER SHALL, WITHIN 30 DAYS AFTER
PAYING SUCH INDEMNIFIED TAX OR OTHER TAX, DELIVER TO THE ADMINISTRATIVE
AGENT AND SUCH CREDIT PARTY SATISFACTORY EVIDENCE OF SUCH PAYMENT TO THE
RELEVANT GOVERNMENTAL AUTHORITY.
Reimbursement for Taxes and Other Taxes Paid by Credit Party. THE BORROWER
SHALL REIMBURSE EACH CREDIT PARTY, WITHIN TEN DAYS AFTER WRITTEN DEMAND
THEREFOR, FOR THE FULL AMOUNT OF ALL INDEMNIFIED TAXES OR OTHER TAXES PAID
BY SUCH CREDIT PARTY ON OR WITH RESPECT TO ANY PAYMENT BY OR ON ACCOUNT OF
ANY OBLIGATION OF THE BORROWER UNDER THE LOAN DOCUMENTS (INCLUDING
INDEMNIFIED TAXES OR OTHER TAXES IMPOSED OR ASSERTED ON OR ATTRIBUTABLE TO
AMOUNTS PAYABLE UNDER THIS SECTION) AND ANY PENALTIES, INTEREST AND
REASONABLE EXPENSES ARISING THEREFROM OR WITH RESPECT THERETO (OTHER THAN
ANY SUCH PENALTIES, INTEREST OR EXPENSES THAT ARE INCURRED BY SUCH CREDIT
PARTY'S UNREASONABLY TAKING OR OMITTING TO TAKE ACTION WITH RESPECT TO SUCH
INDEMNIFIED TAXES OR OTHER TAXES), WHETHER OR NOT SUCH INDEMNIFIED TAXES OR
OTHER TAXES WERE CORRECTLY OR LEGALLY IMPOSED OR ASSERTED BY THE RELEVANT
GOVERNMENTAL AUTHORITY. A CERTIFICATE AS TO THE AMOUNT OF SUCH PAYMENT OR
LIABILITY DELIVERED TO THE BORROWER BY A CREDIT PARTY SHALL BE CONCLUSIVE
ABSENT MANIFEST ERROR. IN THE EVENT THAT ANY CREDIT PARTY DETERMINES IN GOOD
FAITH THAT IT HAS RECEIVED A REFUND OR CREDIT FOR INDEMNIFIED TAXES OR OTHER
TAXES PAID BY THE BORROWER UNDER THIS SECTION 3.7, SUCH CREDIT PARTY SHALL
PROMPTLY NOTIFY THE BORROWER OF SUCH FACT AND SHALL REMIT TO THE BORROWER
THE AMOUNT OF SUCH REFUND OR CREDIT. Foreign Credit Parties. ANY FOREIGN
CREDIT PARTY THAT IS ENTITLED TO AN EXEMPTION FROM OR REDUCTION OF
WITHHOLDING TAX UNDER THE LAW OF THE JURISDICTION IN WHICH THE BORROWER IS
LOCATED, OR ANY TREATY TO WHICH SUCH JURISDICTION IS A PARTY, WITH RESPECT
TO PAYMENTS UNDER THE LOAN DOCUMENTS SHALL DELIVER TO THE BORROWER (WITH A
COPY TO THE ADMINISTRATIVE AGENT), AT THE TIME OR TIMES PRESCRIBED BY
APPLICABLE LAW, SUCH PROPERLY COMPLETED AND EXECUTED DOCUMENTATION
PRESCRIBED BY APPLICABLE LAW (INCLUDING INTERNAL REVENUE FORM W-8BEN OR
W-8ECI) OR REASONABLY REQUESTED BY THE BORROWER AS WILL PERMIT SUCH PAYMENTS
TO BE MADE WITHOUT WITHHOLDING OR AT A REDUCED RATE.
SECTION 3.8. REGISTER
The Administrative Agent will maintain a register for the
recordation of the names and addresses of the Lenders and the Revolving
Commitments of, and principal amount of the Revolving Loans owing to, each
Lender, and the Letters of Credit outstanding, from time to time (the
"REGISTER"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and each
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Loan Party and each Credit Party may treat each party whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this Agreement and
extend or participate in the Extensions of Credit provided herein, the
Borrower makes the following representations and warranties to the Credit
Parties:
SECTION 4.1. ORGANIZATION AND POWER
Each of the Borrower and its Subsidiaries (i) is duly
organized or formed, validly existing and in good standing under the laws of
the jurisdiction of its organization or formation, except for International
Travel & Resorts, Inc. which is not in good standing in the jurisdiction of
incorporation as of the Second Restatement Date as a result of the failure
to file a biennial report, (ii) has all requisite power and authority to own
its property and to carry on its business as now conducted, and (iii) is
duly qualified to do business and is in good standing in each other
jurisdiction in which the nature of the business conducted therein or the
property owned by it therein makes such qualification necessary, except
where such failure to qualify or be in good standing, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
effect. International Travel & Resorts, Inc. is in the process of preparing
and filing its biennial report and will be restored to good standing
promptly after the Second Restatement Date.
SECTION 4.2. AUTHORIZATION; ENFORCEABILITY
Each transaction contemplated by the Loan Documents is within
the corporate power of the Borrower and has been duly authorized by its
Managing Person and, if required, by any other Person, including holders of
its Capital Stock. Each Loan Document has been validly executed and
delivered by each Loan Party thereto and constitutes a legal, valid and
binding obligation of each such Loan Party, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject
to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 4.3. APPROVALS; NO CONFLICTS
Except as provided on Schedule 4.3, no transaction
contemplated by the Loan Documents (i) requires any consent or approval of,
registration or filing with, or any other action by, any Governmental
Authority or any other Person, except such as have been obtained or made and
are in full force and effect, (ii) will violate any applicable law, rule or
regulation or the Organizational Documents of the Borrower or any Subsidiary
or any order of any Governmental Authority, (iii) will violate or result in
a default under any indenture, agreement or other instrument binding upon
the Borrower or any Subsidiary or their assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any
Subsidiary, and (iv) will result in the creation or imposition of any Lien
on any asset of the Borrower or any Subsidiary other than the Permitted
Liens.
SECTION 4.4. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE
THE BORROWER HAS HERETOFORE FURNISHED TO THE CREDIT PARTIES (i) ITS FORM
10-Q FOR THE FISCAL QUARTER ENDED JUNE 30, 1999, CONTAINING THE CONSOLIDATED
BALANCE SHEET AND STATEMENTS OF INCOME AND CASH FLOWS OF THE BORROWER AND
THE SUBSIDIARIES AS OF AND FOR SUCH FISCAL QUARTER AND THE PORTION OF THE
FISCAL YEAR THEN ENDED, CERTIFIED BY ITS CHIEF FINANCIAL OFFICER. SUCH
FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE FINANCIAL
POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE BORROWER AND
CONSOLIDATED SUBSIDIARIES AS OF SUCH DATE AND FOR SUCH PERIOD IN ACCORDANCE
WITH GAAP, SUBJECT TO YEAR-END AUDIT ADJUSTMENTS AND THE ABSENCE OF
FOOTNOTES.
SINCE DECEMBER 31, 1998, EXCEPT FOR ACQUISITIONS PERMITTED UNDER THE
EXISTING CREDIT AGREEMENT, PERMITTED ACQUISITIONS, MATTERS PUBLICLY
DISCLOSED PRIOR TO THE SECOND RESTATEMENT DATE (INCLUDING, WITHOUT
LIMITATION, PUBLISHED RESULTS AND PRESS RELEASES), THE PROJECTED PRELIMINARY
RESULTS FOR THE FISCAL YEAR ENDING DECEMBER 31, 1999 PREVIOUSLY DISCLOSED TO
THE LENDERS AND THE TRANSACTIONS, EACH
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OF THE BORROWER AND EACH SUBSIDIARY WHICH WAS A SUBSIDIARY AS OF SUCH DATE
HAS CONDUCTED ITS BUSINESS ONLY IN THE ORDINARY COURSE AND THERE HAS BEEN NO
MATERIAL ADVERSE CHANGE. SINCE THE DATE OF ITS ACQUISITION (OR IF NOT
ACQUIRED, ITS CREATION), EXCEPT FOR ACQUISITIONS PERMITTED UNDER THE
EXISTING CREDIT AGREEMENT, PERMITTED ACQUISITIONS, MATTERS PUBLICLY
DISCLOSED PRIOR TO THE SECOND RESTATEMENT DATE (INCLUDING, WITHOUT
LIMITATION, PUBLISHED RESULTS AND PRESS RELEASES), THE PROJECTED PRELIMINARY
RESULTS FOR THE FISCAL YEAR ENDING DECEMBER 31, 1999 PREVIOUSLY DISCLOSED TO
THE LENDERS AND THE TRANSACTIONS, EACH SUBSIDIARY HAS CONDUCTED ITS BUSINESS
ONLY IN THE ORDINARY COURSE AND THERE HAS BEEN NO MATERIAL ADVERSE CHANGE.
SECTION 4.5. PROPERTIES, ETC.
EACH OF THE BORROWER AND EACH SUBSIDIARY HAS GOOD AND MARKETABLE TITLE TO,
OR VALID LEASEHOLD INTERESTS IN, ALL OF ITS PROPERTY, REAL AND PERSONAL,
MATERIAL TO ITS BUSINESS, SUBJECT TO NO LIENS, EXCEPT PERMITTED LIENS AND
EXCEPT FOR MINOR DEFECTS IN TITLE THAT DO NOT INTERFERE WITH ITS ABILITY TO
CONDUCT ITS BUSINESS AS CURRENTLY CONDUCTED OR TO UTILIZE SUCH PROPERTIES
FOR THEIR INTENDED PURPOSES. EACH OF THE BORROWER AND EACH SUBSIDIARY OWNS
OR IS LICENSED TO USE ALL INTELLECTUAL PROPERTY MATERIAL TO ITS BUSINESS,
AND THE USE THEREOF BY THE BORROWER OR ANY SUBSIDIARY DOES NOT CONFLICT WITH
OR INFRINGE UPON THE VALID RIGHTS OF OTHERS, EXCEPT FOR ANY SUCH CONFLICTS
OR INFRINGEMENTS THAT INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT REASONABLY
BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
NO CONTRACT, LEASE OR OTHER AGREEMENT TO WHICH THE BORROWER OR ANY
SUBSIDIARY IS A PARTY WILL LAPSE, BE CANCELLED OR OTHERWISE TERMINATE, WHICH
LAPSE, CANCELLATION OR TERMINATION, COULD REASONABLY BE EXPECTED TO RESULT
IN A MATERIAL ADVERSE EFFECT.
SECTION 4.6. LITIGATION
Except as set forth on Schedule 4.6, there are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority (whether purportedly on behalf of the Borrower or any Subsidiary)
pending or, to the knowledge of the Borrower, threatened against the
Borrower or any Subsidiary, or maintained by the Borrower or any Subsidiary
or which may affect the property of the Borrower or any Subsidiary, (i)
that, in the good faith opinion of the Borrower, would reasonably be
expected to have an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse effect or (ii) that involve any of the Transactions.
Since the Second Restatement Date, there has been no change in the status of
any matter disclosed on Schedule 4.6 that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material
Adverse effect.
SECTION 4.7. ENVIRONMENTAL MATTERS
Except as set forth on Schedule 4.7 and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse effect, neither the
Borrower nor any Subsidiary has (i) received written notice or otherwise
learned of any claim, demand, action, event, condition, report or
investigation indicating or concerning any potential or actual liability
which individually or in the aggregate could reasonably be expected to
result in a Material Adverse effect, arising in connection with any
non-compliance with or violation of the requirements of any applicable laws,
rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered
into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Substance (as defined below) or to
health and safety matters (collectively, "ENVIRONMENTAL LAWS"), (ii) to the
best knowledge of the Borrower, any threatened or actual liability in
connection with the release or threatened release of any Hazardous Substance
into the environment which individually or in the aggregate could reasonably
be expected to result in a Material Adverse effect, (iii) received notice of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release or threatened release of any Hazardous
Substance into the environment for which the Borrower or any Subsidiary is
or would be liable, which liability could reasonably be expected to result
in a Material Adverse effect, or (iv) has received notice that any the
Borrower or any Subsidiary is or may be liable to any Person under any
Environmental Law, which liability could reasonably be expected to result in
a Material Adverse effect. Each of the Borrower and each Subsidiary is in
compliance with the financial responsibility requirements of Environmental
Laws to the
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extent applicable, except in those cases in which the failure so to comply
would not reasonably be expected to result in a Material Adverse effect. For
purposes hereof, "HAZARDOUS SUBSTANCE" shall mean any hazardous or toxic
substance, material, waste or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes,
radioactive materials or any other substance or waste regulated pursuant to
any Environmental Law. Since the Second Restatement Date, there has been no
change in the status of any matter disclosed on Schedule 4.7 that,
individually or in the aggregate, has resulted in, or materially increased
the likelihood of, a Material Adverse effect.
SECTION 4.8. COMPLIANCE WITH LAWS AND AGREEMENTS; NO DEFAULT
Each of the Borrower and each Subsidiary is in compliance
with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, including any of the foregoing
relating to the handling of customer deposits except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse effect. No Default has occurred and is
continuing.
SECTION 4.9. INVESTMENT COMPANIES AND OTHER REGULATED ENTITIES
None of the Borrower, any Subsidiary nor any Person
controlled by, controlling, or under common control with, the Borrower or
any Subsidiary, is (i) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (ii) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935 or the Federal Power Act, as amended, or
(iii) subject to any statute or regulation which prohibits or restricts the
incurrence of Indebtedness for borrowed money, including statutes or
regulations relative to common or contract carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other public utility
services.
SECTION 4.10. FEDERAL RESERVE REGULATIONS
NEITHER THE BORROWER NOR ANY SUBSIDIARY IS ENGAGED PRINCIPALLY, OR AS ONE OF
ITS IMPORTANT ACTIVITIES, IN THE BUSINESS OF EXTENDING CREDIT FOR THE
PURPOSE OF PURCHASING OR CARRYING ANY MARGIN STOCK. AFTER GIVING EFFECT TO
EACH TRANSACTION AND THE MAKING OF EACH EXTENSION OF CREDIT, MARGIN STOCK
WILL CONSTITUTE LESS THAN 25% OF THE ASSETS (AS DETERMINED BY ANY REASONABLE
METHOD) OF THE BORROWER AND ITS SUBSIDIARIES.
NO PART OF THE PROCEEDS OF ANY EXTENSION OF CREDIT WILL BE USED, WHETHER
DIRECTLY OR INDIRECTLY, AND WHETHER IMMEDIATELY, INCIDENTALLY OR ULTIMATELY,
FOR ANY PURPOSE THAT ENTAILS A VIOLATION OF, OR THAT IS INCONSISTENT WITH,
THE PROVISIONS OF REGULATION U OR X.
SECTION 4.11. ERISA
Each Pension Plan is in compliance with ERISA and the Code,
where applicable, in all material respects and no ERISA Event has occurred
or is reasonably expected to occur that, when taken together with all other
such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse effect. The present
value of all accumulated benefit obligations under each Pension Plan (based
on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $100,000 the fair
market value of the assets of such Pension Plan, and the present value of
all accumulated benefit obligations of all underfunded Pension Plans (based
on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $100,000 the fair
market value of the assets of all such underfunded Pension Plans.
SECTION 4.12. TAXES
Each of the Borrower and each Subsidiary has timely filed or
caused to be filed all tax returns and reports required to have been filed
and has paid, or caused to be paid, all Taxes required to have been paid by
it except (i) Taxes being contested in good faith by appropriate proceedings
and for which the Borrower or such Subsidiary, as applicable, has set aside
on its books adequate reserves, or (ii) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse effect.
SECTION 4.13. SUBSIDIARIES
AS OF THE SECOND RESTATEMENT DATE, (i) THE BORROWER HAS ONLY THE
SUBSIDIARIES SET FORTH ON, AND THE AUTHORIZED, ISSUED AND OUTSTANDING
CAPITAL STOCK OF THE BORROWER AND ITS SUBSIDIARIES IS AS SET FORTH
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ON, SCHEDULE 4.13 AND (ii) THE OWNERSHIP INTERESTS IN EACH SUBSIDIARY
ARE DULY AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND ARE
OWNED BENEFICIALLY AND OF RECORD BY THE PERSONS SET FORTH ON SUCH SCHEDULE
4.13, FREE AND CLEAR OF ALL LIENS (OTHER THAN PERMITTED LIENS).
AS OF THE SECOND RESTATEMENT DATE, EXCEPT AS SET FORTH ON SCHEDULE 4.13, THE
BORROWER HAS NOT ISSUED ANY SECURITIES CONVERTIBLE INTO, OR OPTIONS OR
WARRANTS FOR, ANY COMMON OR PREFERRED EQUITY SECURITIES THEREOF AND, EXCEPT
AS SET FORTH ON SCHEDULE 4.13, THERE ARE NO AGREEMENTS, VOTING TRUSTS OR
UNDERSTANDINGS BINDING UPON THE BORROWER WITH RESPECT TO THE VOTING
SECURITIES OF ANY SUBSIDIARY OR AFFECTING IN ANY MANNER THE SALE, PLEDGE,
ASSIGNMENT OR OTHER DISPOSITION THEREOF, INCLUDING ANY RIGHT OF FIRST
REFUSAL, OPTION, REDEMPTION, CALL OR OTHER RIGHT WITH RESPECT THERETO,
WHETHER SIMILAR OR DISSIMILAR TO ANY OF THE FOREGOING.
EXCEPT AS SET FORTH ON SCHEDULE 4.13, NO SUBSIDIARY HAS ISSUED ANY
SECURITIES CONVERTIBLE INTO, OR OPTIONS OR WARRANTS FOR, ANY COMMON OR
PREFERRED EQUITY SECURITIES THEREOF AND THERE ARE NO AGREEMENTS, VOTING
TRUSTS OR UNDERSTANDINGS BINDING UPON THE ANY SUBSIDIARY WITH RESPECT TO THE
VOTING SECURITIES OF ANY SUBSIDIARY OR AFFECTING IN ANY MANNER THE SALE,
PLEDGE, ASSIGNMENT OR OTHER DISPOSITION THEREOF, INCLUDING ANY RIGHT OF
FIRST REFUSAL, OPTION, REDEMPTION, CALL OR OTHER RIGHT WITH RESPECT THERETO,
WHETHER SIMILAR OR DISSIMILAR TO ANY OF THE FOREGOING.
SECTION 4.14. ABSENCE OF CERTAIN RESTRICTIONS
No indenture, certificate of designation for preferred stock,
agreement or instrument to which the Borrower or any Subsidiary is a party
(other than this Agreement), prohibits or limits in any way, directly or
indirectly the ability of any Subsidiary to make Restricted Payments or
loans to, to make any advance on behalf of, or to repay any Indebtedness to,
the Borrower or to another Subsidiary.
SECTION 4.15. LABOR RELATIONS
As of the Second Restatement Date, there are no material
controversies pending that involve the Borrower or any Subsidiary which
might result in a Material Adverse effect.
SECTION 4.16. INSURANCE
Schedule 4.16 sets forth a description of all insurance
maintained by or on behalf of the Borrower and the Subsidiaries as of the
Second Restatement Date. As of the Second Restatement Date, all premiums in
respect of such insurance that are due and payable have been paid.
SECTION 4.17. NO MISREPRESENTATION
The Borrower has disclosed to each Credit Party all
agreements, instruments and corporate or other restrictions to which it or
any Subsidiary is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse effect. No certificate or report from time to time
furnished by any of the Loan Parties in connection with the Transactions
contains or will contain a misstatement of material fact, or omits or will
omit to state a material fact required to be stated in order to make the
statements therein contained not misleading in the light of the
circumstances under which made, provided that any projections or pro-forma
financial information contained therein are based upon good faith estimates
and assumptions believed by the Borrower to be reasonable at the time made,
it being recognized by the Credit Parties that such projections as to future
events are not to be viewed as facts, and that actual results during the
period or periods covered thereby may differ from the projected results.
SECTION 4.18. FINANCIAL CONDITION
On and after each Borrowing Date and each date upon which an
Acquisition by the Borrower or any Subsidiary shall be consummated, neither
the Borrower nor any Subsidiary Guarantor is Insolvent.
SECTION 4.19. YEAR 2000
All of the material computer software, computer firmware,
computer hardware (whether general or special purpose) and other similar or
related items of automated, computerized and/or software system(s) that are
used or relied on by the Borrower or any Subsidiary in the conduct of its
business will not malfunction, will not cease to function, will not generate
incorrect data, and will not produce incorrect results when processing,
providing and/or receiving date-related data due to the occurrence of the
year 2000 or the inclusion of dates on or after January 1, 2000.
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SECTION 4.20. MATERIAL AGREEMENTS
The Borrower has not received notice from any party to any
agreements, the cancellation or termination of which individually or in the
aggregate could reasonably be expected to result in a Material Adverse
effect, that such agreement or agreements would be cancelled, not renewed or
otherwise terminated as a result of the consummation of any of the
Transactions.
SECTION 4.21. ACCOUNTS
Schedule 4.21 lists all accounts maintained by the Borrower
or any of its Subsidiaries in which it holds investments or cash (other than
operating checking accounts maintained in the ordinary course of business)
and specifies the nature of each account, the name and address of the
institution in which such account is maintained, the account number of such
account and whether such account contains customer deposits and, if so,
whether any assets not constituting customer deposits are held therein.
ARTICLE 5. CONDITIONS TO EFFECTIVENESS
The effectiveness of this Agreement is subject to the prior or
contemporaneous fulfillment (or waiver in accordance with Section 11.1) of
each of the following conditions:
SECTION 5.1. EVIDENCE OF ACTION
The Administrative Agent shall have received a certificate,
dated the Second Restatement Date, of the Secretary or Assistant Secretary
or other analogous counterpart of each Loan Party: ATTACHING A TRUE AND
COMPLETE COPY OF THE RESOLUTIONS OF ITS MANAGING PERSON AND OF ALL OTHER
DOCUMENTS EVIDENCING ALL NECESSARY CORPORATE ACTION (IN FORM AND SUBSTANCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT) TAKEN TO AUTHORIZE THE AMENDMENT
DOCUMENTS TO WHICH IT IS A PARTY AND THE TRANSACTIONS CONTEMPLATED THEREBY;
CERTIFYING THAT ITS ORGANIZATIONAL DOCUMENTS HAVE NOT BEEN AMENDED SINCE
FEBRUARY 19, 1999 (OR, IN THE CASE OF A SUBSIDIARY WHICH WAS NOT A LOAN
PARTY ON SUCH DATE, THE DATE ON WHICH IT EXECUTED AND DELIVERED THE
SUPPLEMENT TO THE GUARANTY AND THE SUPPLEMENT TO THE SECURITY AGREEMENT) OR,
IF SO, SETTING FORTH THE SAME; AND
SETTING FORTH THE INCUMBENCY OF ITS OFFICER OR OFFICERS (OR OTHER
ANALOGOUS COUNTERPART) WHO MAY SIGN THE LOAN DOCUMENTS, INCLUDING THEREIN A
SIGNATURE SPECIMEN OF SUCH OFFICER OR OFFICERS (OR OTHER ANALOGOUS
COUNTERPART);
SECTION 5.2. THIS AGREEMENT
The Administrative Agent (or its counsel) shall have
received, in respect of each Person listed on the signature pages of this
Agreement, either (i) a counterpart signature page hereof signed on behalf
of such Person, or (ii) written evidence satisfactory to the Administrative
Agent (which may include a facsimile transmission of a signed signature page
of this Agreement) that a counterpart signature page hereof has been signed
on behalf of such Person.
SECTION 5.3. NOTES
The Administrative Agent shall have received an amended and
restated Note for each Lender, dated the Second Restatement Date, duly
executed by a duly authorized officer of the Borrower.
SECTION 5.4. OPINION OF COUNSEL TO THE LOAN PARTIES
The Administrative Agent shall have received favorable
opinions of (i) Xxxxx & Xxxxxxx, L.L.P, counsel to the Loan Parties, and
(ii) Xxxxx X. Xxxxxxxxxx, Esq., General Counsel of the Borrower, each
addressed to the Credit Parties (and permitting counsel to the
Administrative Agent to rely thereon), dated the Second Restatement Date,
and in form and substance satisfactory to the Administrative Agent.
SECTION 5.5. PERFECTION CERTIFICATE
The Administrative Agent (or its counsel) shall have received
a completed Perfection Certificate, dated the Second Restatement Date and
signed by an executive officer of the Borrower, together with all
attachments contemplated thereby.
SECTION 5.6. ABSENCE OF MATERIAL ADVERSE CHANGE
Since December 31, 1998, except for matters publicly
disclosed prior to the Second Restatement Date (including, without
limitation, published results and press releases) and the projected
preliminary results for the fiscal year ending December 31, 1999 previously
disclosed to the Lenders there shall have occurred no Material Adverse
change and the Administrative Agent shall have received a
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certificate of a Financial Officer of the Borrower, dated the Second
Restatement Date, to the foregoing effect.
SECTION 5.7. OFFICER'S CERTIFICATE
The Administrative Agent shall have received a certificate of a Financial
Officer of the Borrower, dated the Second Restatement Date, in all respects
satisfactory to the Administrative Agent certifying that as of the Second
Restatement Date (i) no Default exists and (ii) the representations and
warranties contained in the Loan Documents are true and correct.
SECTION 5.8. AMENDMENT TO SECURITY AGREEMENT
The Administrative Agent shall have received Amendment No. 1 to the
Security Agreement, in form and substance satisfactory to the Administrative
Agent, duly executed by each of the Loan Parties.
SECTION 5.8. FEES AND EXPENSES
The Administrative Agent shall have received all fees, expenses and other
amounts due and payable to the Administrative Agent and all fees due and
payable to the Administrative Agent for the account of the Lenders under the
Loan Documents and any separate fee letters among the Borrower and one or
more of the Lenders and the Administrative Agent, including, to the extent
invoiced, reimbursement or payment of the fees and disbursements of the
Administrative Agent's counsel and all other out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder. In addition, the
Administrative Agent shall have received a fully executed copy of a fee
letter among the Administrative Agent, the Lenders and the Borrower.
SECTION 5.9. OTHER DOCUMENTS
The Administrative Agent shall have received such other
documents, each in form and substance reasonably satisfactory to it, as it
shall reasonably request.
ARTICLE 6. CONDITIONS TO EACH EXTENSION OF CREDIT
The obligation of each Credit Party to make any Extension of Credit
(other than a participation in a Letter of Credit) under this Agreement
shall be subject to the satisfaction of the following conditions precedent
as of the date thereof:
SECTION 6.1. COMPLIANCE
On each Borrowing Date and after giving effect to the
Extensions of Credit thereon (i) no Default shall have occurred or be
continuing; and (ii) the representations and warranties contained in the
Loan Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on
such Borrowing Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier date. Each Extension of Credit and each Credit Request therefor
shall constitute a certification by the Borrower as of such Borrowing Date
that each of the foregoing matters is true and correct in all respects.
SECTION 6.2. CREDIT REQUEST
With respect to each Extension of Credit, the Administrative
Agent shall have received a Credit Request, executed by a duly authorized
officer of the Borrower.
SECTION 6.3. LAW
Such Extension of Credit shall not be prohibited by any applicable law,
rule or regulation.
ARTICLE 7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Commitment is in effect and
until the principal of, and interest on, each Loan, all Reimbursement
Obligations, all Fees and all other amounts payable under the Loan Documents
shall have been paid in full:
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SECTION 7.1. FINANCIAL STATEMENTS AND INFORMATION
The Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender:
WITHIN 90 DAYS AFTER THE END OF EACH FISCAL YEAR:
a copy of its Form 10-K for such fiscal year containing the audited
consolidated balance sheet and related statements of income, stockholders'
equity and cash flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on by the Accountants (without (x) a "going concern" or like
qualification or exception, (y) any qualification or exception as to the
scope of such audit or (z) any qualification or exception which relates to
the treatment or classification of any item and which, as a condition to the
removal of such qualification, would require an adjustment to such item, the
effect of which would be to cause the Borrower to be in default of any of
its obligations under Section 8.14 (each, an "IMPERMISSIBLE QUALIFICATION"))
to the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied; and
a copy of its unaudited consolidating balance sheet and related
statements of income, stockholders' equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, certified by a Financial Officer of
the Borrower, as being complete and correct in all material respects and as
presenting fairly the consolidating financial condition and the
consolidating results of operations of the Borrower and the Subsidiaries.
WITHIN 45 DAYS AFTER THE END OF EACH OF THE FIRST THREE FISCAL QUARTERS OF
EACH FISCAL YEAR:
a copy of its Form 10-Q for such fiscal quarter consolidated balance
sheet and the related consolidated statements of income and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes; and
a copy of its consolidating balance sheet and related statements of
income, and cash flows as of the end of and for such fiscal quarter and the
then elapsed portion of such fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or,
in the case of the balance sheet, as of the end of) the previous fiscal
year, certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidating basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, together with a schedule of other
unaudited financial information consisting of consolidating or combining
details in columnar form with such consolidating Subsidiaries separately
identified, in accordance with GAAP consistently applied;
CONCURRENTLY WITH ANY DELIVERY OF FINANCIAL STATEMENTS UNDER SUBSECTIONS (a)
OR (b) ABOVE, A CERTIFICATE (A "Compliance Certificate") OF A FINANCIAL
OFFICER OF THE BORROWER, SUBSTANTIALLY IN THE FORM OF EXHIBIT D, (i)
CERTIFYING AS TO WHETHER A DEFAULT HAS OCCURRED AND, IF SO, SPECIFYING THE
DETAILS THEREOF AND ANY ACTION TAKEN OR PROPOSED TO BE TAKEN WITH RESPECT
THERETO, (ii) SETTING FORTH REASONABLY DETAILED CALCULATIONS DEMONSTRATING
COMPLIANCE WITH SECTION 8.14 AND (iii) STATING WHETHER ANY CHANGE IN GAAP OR
IN THE APPLICATION THEREOF HAS OCCURRED SINCE THE DATE OF THE AUDITED
FINANCIAL STATEMENTS REFERRED TO IN SECTION 4.4 AND, IF ANY SUCH CHANGE HAS
OCCURRED, SPECIFYING THE EFFECT OF SUCH CHANGE ON THE FINANCIAL STATEMENTS
ACCOMPANYING SUCH COMPLIANCE CERTIFICATE; CONCURRENTLY WITH ANY DELIVERY OF
FINANCIAL STATEMENTS UNDER SUBSECTION (a) ABOVE, A CERTIFICATE EXECUTED BY
AN EXECUTIVE OFFICER OR A FINANCIAL OFFICER OF THE BORROWER (i) SETTING
FORTH THE INFORMATION REQUIRED PURSUANT TO SECTIONS 2 AND 5 OF THE
PERFECTION CERTIFICATE OR CONFIRMING THAT THERE HAS BEEN NO CHANGE IN SUCH
INFORMATION SINCE THE DATE OF SUCH CERTIFICATE OR THE DATE OF THE MOST
RECENT CERTIFICATE DELIVERED PURSUANT TO THIS SUBSECTION (d), (ii)
CERTIFYING THAT ALL UNIFORM COMMERCIAL CODE FINANCING STATEMENTS OR OTHER
APPROPRIATE FILINGS, RECORDINGS OR REGISTRATIONS, INCLUDING ALL REFILINGS,
RERECORDINGS AND RE-REGISTRATIONS, CONTAINING A DESCRIPTION OF THE
COLLATERAL,
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HAVE BEEN FILED OF RECORD IN EACH GOVERNMENTAL, MUNICIPAL OR OTHER
APPROPRIATE OFFICE IN EACH JURISDICTION IDENTIFIED PURSUANT TO CLAUSE (i)
ABOVE TO THE EXTENT NECESSARY TO PROTECT AND PERFECT THE SECURITY INTEREST
OF THE ADMINISTRATIVE AGENT FOR A PERIOD OF NOT LESS THAN 18 MONTHS AFTER
THE DATE OF SUCH CERTIFICATE (EXCEPT AS NOTED THEREIN WITH RESPECT TO ANY
CONTINUATION STATEMENTS TO BE FILED WITHIN SUCH PERIOD) AND (iii)
IDENTIFYING IN THE FORMAT OF SCHEDULES 7, 8 AND 10, AS APPLICABLE, EQUITY
INTERESTS (AS DEFINED IN THE SECURITY AGREEMENT), INSTRUMENTS (AS DEFINED IN
THE SECURITY AGREEMENT) AND INTELLECTUAL PROPERTY OF THE BORROWER AND EACH
SUBSIDIARY GUARANTOR IN EXISTENCE ON THE DATE THEREOF AND NOT THEN LISTED ON
SUCH SCHEDULES OR PREVIOUSLY SO IDENTIFIED TO THE ADMINISTRATIVE AGENT;
CONCURRENTLY WITH ANY DELIVERY OF FINANCIAL STATEMENTS UNDER SUBSECTIONS (a)
AND (b) ABOVE, A CERTIFICATE EXECUTED BY A FINANCIAL OFFICER ATTACHING A
TRUE AND COMPLETE LIST OF ALL INVESTMENTS OF THE BORROWER AND SUBSIDIARIES
AND INCLUDING INFORMATION AS TO THE IDENTITY AND LOCATION OF THE SECURITIES
ACCOUNTS IN WHICH THEY ARE HELD AND SUCH INFORMATION AS SHALL BE SUFFICIENT
TO ENABLE THE ADMINISTRATIVE AGENT TO MAKE A DETERMINATION AS TO WHETHER, IN
ITS GOOD FAITH DETERMINATION, SUCH INVESTMENTS AND THE EARNINGS THEREFROM
SUFFICIENTLY REDUCE THE EXPOSURE OF THE BORROWER AND THE SUBSIDIARIES TO
INTEREST RATE FLUCTUATIONS;
FOR THE PERIOD FROM THE SECOND RESTATEMENT DATE THROUGH SEPTEMBER 30, 2000,
(i) NO LATER THAN 30 DAYS AFTER THE LAST DAY OF EACH MONTH, A COPY OF ITS
CONSOLIDATING BALANCE SHEETS AND RELATED STATEMENTS OF INCOME AND CASH FLOWS
AS OF THE END OF AND FOR SUCH MONTH AND (ii) NO LATER THAN 45 DAYS AFTER THE
LAST DAY OF EACH MONTH, A COPY OF PROJECTIONS OF ITS CONSOLIDATING BALANCE
SHEETS AND RELATED STATEMENTS OF INCOME AND CASH FLOWS ON A MONTHLY BASIS
FOR THE NEXT SUCCEEDING TWELVE MONTHS;
PROMPTLY AFTER THE SAME BECOME PUBLICLY AVAILABLE, COPIES OF ALL MATERIAL
PERIODIC AND OTHER REPORTS, PROXY STATEMENTS AND OTHER MATERIALS FILED BY
THE BORROWER OR ANY SUBSIDIARY WITH THE SEC OR WITH ANY NATIONAL SECURITIES
EXCHANGE, OR DISTRIBUTED BY THE BORROWER TO ITS SHAREHOLDERS GENERALLY, AS
THE CASE MAY BE;
PROMPTLY UPON ENTERING INTO ANY PRIVATE LABEL BUSINESS OR GROUP BUSINESS (AS
SUCH TERMS ARE DEFINED IN THE SECURITY AGREEMENT) WHICH WILL REQUIRE THE
EXCLUSION OF CUSTOMER DEPOSITS FROM COLLATERAL, NOTIFY THE ADMINISTRATIVE
AGENT AND THE LENDERS IN WRITING THEREOF (SUCH NOTICE TO INCLUDE COPIES OF
THE RELEVANT AGREEMENTS GOVERNING SUCH TRANSACTIONS, INCLUDING ANY ESCROW OR
SIMILAR AGREEMENTS); AND
PROMPTLY FOLLOWING ANY REQUEST THEREFOR, SUCH OTHER INFORMATION REGARDING
THE BORROWER OR ANY SUBSIDIARY, OR COMPLIANCE WITH THE TERMS OF THIS
AGREEMENT, AS ANY CREDIT PARTY MAY REASONABLY REQUEST.
SECTION 7.2. NOTICE OF MATERIAL EVENTS
The Borrower shall furnish to the Administrative Agent and
each Lender, prompt written notice of the following together with a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice
and, if applicable, any action taken or proposed to be taken with respect
thereto:
THE OCCURRENCE OF ANY DEFAULT;
THE FILING OR COMMENCEMENT OF ANY ACTION, SUIT OR PROCEEDING BY OR BEFORE
ANY GOVERNMENTAL AUTHORITY AGAINST OR AFFECTING THE BORROWER OR ANY
AFFILIATE THEREOF THAT, IF ADVERSELY DETERMINED, COULD IN THE GOOD FAITH
OPINION OF THE BORROWER REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT;
ANY LAPSE, REFUSAL TO RENEW OR EXTEND OR OTHER TERMINATION OF ANY MATERIAL
LICENSE, PERMIT, FRANCHISE OR OTHER AUTHORIZATION ISSUED TO THE BORROWER OR
ANY SUBSIDIARY BY ANY PERSON OR GOVERNMENTAL AUTHORITY, WHICH LAPSE, REFUSAL
OR TERMINATION, COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT;
THE OCCURRENCE OF ANY ERISA EVENT THAT, ALONE OR TOGETHER WITH ANY OTHER
ERISA EVENTS THAT HAVE OCCURRED, COULD REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT;
THE OCCURRENCE OF ANY EQUITY ISSUANCE RESULTING IN NET CASH PROCEEDS;
THE OCCURRENCE OF ANY INSURED DAMAGE TO ANY PORTION OF ANY COLLATERAL OR THE
COMMENCEMENT OF ANY ACTION OR PROCEEDING FOR THE TAKING OF ANY COLLATERAL OR
ANY PART THEREOF OR INTEREST THEREIN UNDER
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POWER OF EMINENT DOMAIN OR BY CONDEMNATION OR SIMILAR PROCEEDING THE VALUE
OF WHICH WOULD REASONABLY BE EXPECTED TO EXCEED $250,000; OR
THE OCCURRENCE OF ANY OTHER DEVELOPMENT THAT HAS OR COULD REASONABLY BE
EXPECTED TO RESULT IN, A MATERIAL ADVERSE EFFECT.
SECTION 7.3. EXISTENCE; CONDUCT OF BUSINESS
The Borrower shall, and shall cause each Subsidiary to, do or
cause to be done all things necessary to preserve, renew and keep in full
force and effect (i) its legal existence (provided that the foregoing shall
not prohibit any merger or consolidation not prohibited by Section 8.3), and
(ii) all rights, licenses, permits, privileges and franchises the absence of
which would reasonably be expected to have a Material Adverse effect.
SECTION 7.4. PAYMENT OF OBLIGATIONS
The Borrower shall, and shall cause each Subsidiary to, pay
and discharge when due, its obligations, including obligations with respect
to Taxes, which, if unpaid, could reasonably be expected to result in a
Material Adverse effect, except where (i) the validity or amount thereof is
being contested in good faith by appropriate proceedings diligently
conducted, (ii) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (iii) the
failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse effect.
SECTION 7.5. MAINTENANCE OF PROPERTIES
The Borrower shall, and shall cause each Subsidiary to,
maintain, protect and keep in good repair, working order and condition
(ordinary wear and tear excepted) at all times, all of its property other
than property, the loss of which would not reasonably be expected to have a
Material Adverse effect.
SECTION 7.6. INSURANCE
The Borrower shall, and shall cause each Subsidiary to,
maintain with financially sound and reputable insurance companies (i)
insurance in at least such amounts and against at least such risks (but
including in any event public liability and business interruption coverage)
as are usually insured against in the same general area by companies engaged
in the same or a similar business and (ii) such other insurance as is
required pursuant to the terms of any Security Document, and furnish to the
Administrative Agent, upon written request, full information as to the
insurance carried.
SECTION 7.7. BOOKS AND RECORDS; INSPECTION RIGHTS
The Borrower shall, and shall cause each Subsidiary to, keep
proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities and, at all reasonable times upon reasonable prior notice, permit
representatives of the Credit Parties (including any consultant designated
by the Administrative Agent after consultation with the Lenders) to (i)
visit the offices of the Borrower and each Subsidiary, (ii) examine such
books and records and Accountants' reports relating thereto, (iii) make
copies or extracts therefrom, (iv) discuss the affairs of the Borrower and
each such Subsidiary with the respective officers thereof, (v) to examine
and inspect the property of the Borrower and each such Subsidiary and (vi)
meet and discuss the affairs of the Borrower and each such Subsidiary with
the Accountants.
SECTION 7.8. COMPLIANCE WITH LAWS
The Borrower shall, and shall cause each Subsidiary to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse effect.
SECTION 7.9. ADDITIONAL SUBSIDIARIES
Domestic Subsidiaries. SUBJECT TO ARTICLE 5, IN THE EVENT THAT ON OR AFTER
THE ORIGINAL EFFECTIVE DATE, ANY PERSON SHALL BECOME A DOMESTIC SUBSIDIARY,
OR ANY SUBSIDIARY (OTHER THAN A SUBSIDIARY GUARANTOR) SHALL AT ANY TIME BE A
DOMESTIC SUBSIDIARY, THE BORROWER SHALL (i) NOTIFY THE ADMINISTRATIVE AGENT
IN WRITING THEREOF WITHIN THREE BUSINESS DAYS THEREOF, (ii) CAUSE SUCH PERSON
TO EXECUTE AND DELIVER TO THE ADMINISTRATIVE AGENT THE SUBSIDIARY GUARANTEE
OR, IF THE SUBSIDIARY GUARANTEE IS THEN IN EFFECT, A GUARANTEE SUPPLEMENT (AS
DEFINED THEREIN), A SECURITY AGREEMENT SUPPLEMENT (AS DEFINED IN THE SECURITY
AGREEMENT) AND TO BECOME A PARTY TO EACH OTHER APPLICABLE SECURITY DOCUMENT
IN THE MANNER PROVIDED THEREIN WITHIN FIVE BUSINESS DAYS THEREAFTER AND TO
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PROMPTLY TAKE SUCH ACTIONS TO CREATE AND PERFECT LIENS ON
SUCH PERSON'S ASSETS TO SECURE SUCH PERSON'S OBLIGATIONS UNDER THE LOAN
DOCUMENTS AS THE ADMINISTRATIVE AGENT OR THE REQUIRED LENDERS SHALL
REASONABLY REQUEST, (iii) CAUSE ANY SHARES OF CAPITAL STOCK OF, OR
PROMISSORY NOTES EVIDENCING INDEBTEDNESS OF, SUCH NEW DOMESTIC SUBSIDIARY
OWNED BY OR ON BEHALF OF ANY LOAN PARTY TO BE PLEDGED PURSUANT TO THE
SECURITY AGREEMENT WITHIN FIVE BUSINESS DAYS THEREAFTER, (iv) CAUSE EACH
SUCH NEW DOMESTIC SUBSIDIARY TO DELIVER TO THE ADMINISTRATIVE AGENT ANY
SHARES OF CAPITAL STOCK OR PROMISSORY NOTES EVIDENCING INDEBTEDNESS OF ANY
SUBSIDIARY THAT ARE OWNED BY OR ON BEHALF OF SUCH NEW DOMESTIC SUBSIDIARY
WITHIN FIVE BUSINESS DAYS AFTER SUCH SUBSIDIARY IS FORMED OR ACQUIRED
(EXCEPT THAT, IF ANY SUCH SUBSIDIARY IS A FOREIGN SUBSIDIARY, SHARES OF
CAPITAL STOCK OF SUCH PERSON TO BE SO PLEDGED MAY BE LIMITED AS PROVIDED IN
SUBSECTION (b) BELOW AND, IF REQUESTED BY THE ADMINISTRATIVE AGENT WITH
RESPECT TO THE PLEDGE OF CAPITAL STOCK OF A FOREIGN SUBSIDIARY, THE
ADMINISTRATIVE AGENT SHALL RECEIVE THE DOCUMENTS REFERRED TO IN SUBSECTION
(b)(iii) BELOW), AND (v) DELIVER TO THE ADMINISTRATIVE AGENT A PERFECTION
CERTIFICATE WITH RESPECT TO SUCH SUBSIDIARY AND SUCH ADDITIONAL FINANCING
STATEMENTS, GRANTS OF SECURITY INTEREST AND POWERS OF ATTORNEY (AS EACH SUCH
TERM IS DEFINED IN THE SECURITY AGREEMENT) CERTIFICATES, INSTRUMENTS,
OPINIONS AND OTHER DOCUMENTS AS THE ADMINISTRATIVE AGENT MAY REQUEST.
Foreign Subsidiaries. IN THE EVENT THAT ON OR AFTER THE ORIGINAL EFFECTIVE
DATE, ANY PERSON SHALL BECOME A FOREIGN SUBSIDIARY, THE BORROWER SHALL (i)
NOTIFY THE ADMINISTRATIVE AGENT IN WRITING THEREOF WITHIN THREE BUSINESS
DAYS THEREOF, (ii) CAUSE SUCH PERSON TO EXECUTE AND DELIVER TO THE
ADMINISTRATIVE AGENT AN INTERCOMPANY SUBORDINATION AGREEMENT (iii) CAUSE THE
LESSER OF (x) 65% OF THE OUTSTANDING SHARES OF CAPITAL STOCK OF SUCH FOREIGN
SUBSIDIARY OR (y) ALL OF SUCH SHARES OWNED BY THE LOAN PARTIES, TOGETHER
WITH ALL PROMISSORY NOTES EVIDENCING INDEBTEDNESS OF, SUCH FOREIGN
SUBSIDIARY ARE TO ANY LOAN PARTY TO BE PLEDGED PURSUANT TO THE SECURITY
AGREEMENT WITHIN FIVE BUSINESS DAYS THEREAFTER, PROVIDED, THAT IF REQUESTED
BY THE ADMINISTRATIVE AGENT WITH RESPECT TO THE PLEDGE OF CAPITAL STOCK OF A
FOREIGN SUBSIDIARY, DELIVER TO THE ADMINISTRATIVE AGENT AN ADDITIONAL PLEDGE
AGREEMENT, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT (EACH AN "Additional Pledge Agreement") AND AN OPINION
OF COUNSEL (INCLUDING COUNSEL PRACTICING UNDER THE LAWS OF THE JURISDICTION
UNDER WHICH SUCH FOREIGN SUBSIDIARY WAS FORMED) WITH RESPECT TO THE
ENFORCEABILITY OF SUCH PLEDGE AGREEMENT OR ADDITIONAL PLEDGE AGREEMENT AND
THE VALIDITY AND PERFECTION OF THE LIEN GRANTED THEREIN AND (iv) DELIVER TO
THE ADMINISTRATIVE AGENT SUCH CERTIFICATES, INSTRUMENTS AND OPINIONS AS THE
ADMINISTRATIVE AGENT MAY REQUEST.
SECTION 7.10. ADDITIONAL COLLATERAL
Subject to Article 5, if after the Original Effective Date, the
Borrower or any other Loan Party acquires any property which would
constitute Collateral, the Borrower shall, and shall cause each such Loan
Party to, execute any and all documents, financing statements, agreements
and instruments, Grants of Security Interests and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust, control agreements and other documents),
that may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to effectuate the
Transactions or to grant, preserve, protect or perfect the Liens created or
intended to be created by the Security Documents or the validity or priority
of any such Lien, all at the expense of the Loan Parties.
SECTION 7.11. HEDGING AGREEMENTS
Within 30 days after the Administrative Agent notifies the
Borrower that in the good faith determination of the Administrative Agent
(which determination shall be binding on the Borrower), the investments of
the Borrower and the Subsidiaries and the earnings therefrom do not
sufficiently reduce the exposure of the Borrower and the Subsidiaries to
interest rate fluctuations, the Borrower shall enter into and maintain
Hedging Agreements, in form and substance reasonably satisfactory to the
Administrative Agent, with respect to an amount equal to not less than 50%
of the sum of the Aggregate Revolving Exposure at any time.
SECTION 7.12. CONTROL AGREEMENTS
No later than 30 days after the Second Restatement Date, the
Administrative Agent shall have received a control agreement, in form and
substance satisfactory to the Administrative Agent (a "Control Agreement"),
with respect to each Securities Account in which Collateral is held, in each
case
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duly executed by the Borrower, the Subsidiary Guarantors and the
institution at which such Securities Account is maintained and such UCC
financing statements as may be requested by the Administrative Agent in
connection with the perfection of its security interest in each such
Securities Account.
SECTION 7.13. POST CLOSING DELIVERIES
No later than 30 days after the Second Restatement Date, the Borrower
shall deliver or cause to be delivered to the Administrative Agent the
following:
WITH RESPECT TO EACH LOAN PARTY, CERTIFICATES OF GOOD STANDING OF
THE SECRETARY OF STATE OF THE JURISDICTION OF ITS INCORPORATION OR FORMATION
AND OF EACH OTHER JURISDICTION IN WHICH IT IS QUALIFIED TO DO BUSINESS,
EXCEPT, IN THE CASE OF SUCH OTHER JURISDICTION, WHEN THE FAILURE TO BE IN
GOOD STANDING IN SUCH JURISDICTION WOULD NOT RESULT IN A MATERIAL ADVERSE
EFFECT; AND
UCC-3 AMENDMENTS EXECUTED BY EACH LOAN PARTY AS SHALL BE REQUESTED BY THE
ADMINISTRATIVE AGENT TO REFLECT THE CHANGED DEFINITION OF "COLLATERAL" SET
FORTH IN AMENDMENT NO. 1 TO THE SECURITY AGREEMENT.
ARTICLE 8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Commitment is in effect and
until the principal of, and interest on, each Loan, all Reimbursement
Obligations, all Fees and all other amounts payable under the Loan Documents
shall have been paid in full:
SECTION 8.1. INDEBTEDNESS
The Borrower shall not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist any liability for Indebtedness,
except:
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INDEBTEDNESS UNDER THE LOAN DOCUMENTS;
INDEBTEDNESS EXISTING ON THE DATE HEREOF AND SET FORTH IN SCHEDULE 8.1, BUT
NOT ANY EXTENSIONS, RENEWALS OR REPLACEMENTS OF ANY SUCH INDEBTEDNESS;
INDEBTEDNESS OF THE BORROWER TO ANY SUBSIDIARY GUARANTOR AND OF ANY
SUBSIDIARY GUARANTOR TO THE BORROWER OR ANY OTHER SUBSIDIARY GUARANTOR;
GUARANTEES BY THE BORROWER OF INDEBTEDNESS OF ANY SUBSIDIARY GUARANTOR AND BY
ANY SUBSIDIARY GUARANTOR OF INDEBTEDNESS OF THE BORROWER OR ANY OTHER
SUBSIDIARY GUARANTOR; AND
INDEBTEDNESS OF THE BORROWER OR ANY SUBSIDIARY INCURRED TO FINANCE THE
ACQUISITION, CONSTRUCTION OR IMPROVEMENT OF ANY FIXED OR CAPITAL ASSETS,
INCLUDING CAPITAL LEASE OBLIGATIONS AND ANY INDEBTEDNESS ASSUMED IN
CONNECTION WITH THE ACQUISITION OF ANY SUCH ASSETS OR SECURED BY A LIEN ON
ANY SUCH ASSETS PRIOR TO THE ACQUISITION THEREOF, AND EXTENSIONS, RENEWALS
AND REPLACEMENTS OF ANY SUCH INDEBTEDNESS THAT DO NOT INCREASE THE
OUTSTANDING PRINCIPAL AMOUNT THEREOF, PROVIDED THAT (A) SUCH INDEBTEDNESS IS
INCURRED PRIOR TO OR WITHIN 90 DAYS AFTER SUCH ACQUISITION OR THE COMPLETION
OF SUCH CONSTRUCTION OR IMPROVEMENT AND (B) THE AGGREGATE PRINCIPAL AMOUNT OF
INDEBTEDNESS PERMITTED BY THIS CLAUSE (e) SHALL NOT EXCEED $2,500,000 AT ANY
TIME OUTSTANDING;
INDEBTEDNESS IN RESPECT OF SURETY BONDS REQUIRED IN THE ORDINARY COURSE OF
BUSINESS OF THE BORROWER AND ITS SUBSIDIARIES;
OTHER UNSECURED INDEBTEDNESS OF THE BORROWER (THE "Refinancing Debt"),
PROVIDED THAT: (i) NO DEFAULT SHALL EXIST IMMEDIATELY BEFORE AND AFTER GIVING
EFFECT THERETO AND ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
ARTICLE 4 SHALL BE TRUE AND CORRECT AS IF THEN MADE, (ii) THE TERMS AND
CONDITIONS OF THE NOTE OR OTHER AGREEMENTS PURSUANT TO WHICH THE REFINANCING
DEBT IS ISSUED (COLLECTIVELY, THE "Refinancing Debt Documents") ARE NO LESS
FAVORABLE TAKEN AS A WHOLE TO THE BORROWER THAN THE TERMS AND CONDITIONS OF
THIS AGREEMENT, (iii) THE REFINANCING DEBT SHALL BE EITHER PARI PASSU WITH,
OR SUBORDINATED TO, THE INDEBTEDNESS UNDER THE LOAN DOCUMENTS, (iv) THE
MATURITY OF SUCH INDEBTEDNESS IS NOT EARLIER THAN ONE YEAR AFTER THE MATURITY
DATE, (v) INTEREST THEREON IS PAYABLE IN CASH AND THE RATE THEREON IS NOT IN
EXCESS OF THE RATE AVAILABLE FOR SIMILAR BORROWINGS BY SIMILAR BORROWERS AT
THE TIME OF THE INCURRENCE OF THE REFINANCING DEBT, (vi) THE NET CASH
PROCEEDS THEREOF ARE APPLIED TO THE PERMANENT REDUCTION OF THE AGGREGATE
REVOLVING COMMITMENT AND THE PREPAYMENT OF THE REVOLVING LOANS PURSUANT TO
SECTIONS 2.3 AND 2.4, AND (vii) THE ADMINISTRATIVE AGENT RECEIVES A COPY OF
THE AGREEMENT, INDENTURE OR OTHER DOCUMENTS GOVERNING SUCH REFINANCING DEBT,
WHICH SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE REQUIRED
LENDERS.
SECTION 8.2. NEGATIVE PLEDGE
The Borrower shall not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of
any thereof, except for the following (collectively, "PERMITTED LIENS"):
ANY CUSTOMARY LIEN;
ANY LIEN ON ANY PROPERTY OR ASSET OF THE BORROWER OR ANY SUBSIDIARY AS SET
FORTH ON SCHEDULE 8.2 AND EXISTING ON THE DATE HEREOF, PROVIDED THAT, IN EACH
CASE, (i) SUCH LIEN SHALL NOT APPLY TO ANY OTHER PROPERTY OR ASSET OF THE
BORROWER OR ANY SUBSIDIARY, AND (ii) SUCH LIEN SHALL SECURE ONLY THOSE
OBLIGATIONS WHICH IT SECURES AS SET FORTH ON SUCH SCHEDULE, AND ANY
EXTENSIONS, RENEWALS AND REPLACEMENTS THEREOF THAT DO NOT INCREASE THE
OUTSTANDING PRINCIPAL AMOUNT THEREOF. (i) ANY LIEN EXISTING ON ANY FIXED OR
CAPITAL ASSETS ACQUIRED, CONSTRUCTED OR IMPROVED BY THE BORROWER OR ANY
SUBSIDIARY OR (ii) ANY LIEN EXISTING ON ANY ASSET PRIOR TO THE ACQUISITION
THEREOF BY THE BORROWER OR ANY SUBSIDIARY OR EXISTING ON ANY ASSET OF ANY
PERSON THAT BECOMES A SUBSIDIARY AFTER THE ORIGINAL EFFECTIVE DATE PRIOR TO
THE TIME SUCH PERSON BECOMES A SUBSIDIARY, PROVIDED THAT (A) SUCH LIENS
SECURE INDEBTEDNESS PERMITTED BY SECTION 8.1(e), (B) SUCH LIENS SHALL NOT
APPLY TO ANY OTHER ASSETS OF THE BORROWER OR ANY SUBSIDIARY (OTHER THAN FIXED
ASSETS THAT CONSTITUTE FIXTURES THEREON OR ACCESSIONS THERETO), (C) WITH
RESPECT TO LIENS UNDER CLAUSE (i) OF THIS SECTION 8.2(c) ONLY, THE
INDEBTEDNESS SECURED BY SUCH LIENS DOES NOT EXCEED THE COST OF ACQUIRING,
CONSTRUCTING OR IMPROVING SUCH FIXED OR CAPITAL ASSETS AND (D) WITH RESPECT
TO LIENS UNDER CLAUSE (ii) OF THIS SECTION 8.2(c) ONLY, SUCH LIENS SHALL BE
NOT BE CREATED IN CONTEMPLATION OF OR IN CONNECTION WITH THE ACQUISITION OF
SUCH ASSET OR THE CREATION OR ACQUISITION OF SUCH PERSON, AS THE CASE MAY BE,
AND SUCH
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LIENS SHALL SECURE ONLY THOSE OBLIGATIONS THAT IT SECURES ON THE DATE OF
SUCH ACQUISITION OR CREATION, AS THE CASE MAY BE, AND, TO THE EXTENT
PERMITTED UNDER SECTION 8.1(e), ANY EXTENSIONS, RENEWALS AND REPLACEMENTS
THEREOF THAT DO NOT INCREASE THE PRINCIPAL AMOUNT THEREOF.
LIENS ON MARGIN STOCK, IF AND TO THE EXTENT THAT THE VALUE OF THE MARGIN
STOCK OF THE BORROWER AND ITS SUBSIDIARIES EXCEEDS 25% OF THE ASSETS (AS
DETERMINED BY ANY REASONABLE METHOD) OF THE BORROWER AND ITS SUBSIDIARIES.
SECTION 8.3. FUNDAMENTAL CHANGES
The Borrower shall not, and shall not permit Subsidiaries to,
consolidate or merge into or with any other Person, or permit any other
Person to merge into or consolidate with it or any Subsidiary, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or substantially all of its assets, or all or
substantially all of any class of the Capital Stock of any Subsidiary (in
each case, whether now owned or hereafter acquired), or liquidate or
dissolve, or permit any Subsidiaries to do any of the foregoing, except that
so long as immediately before and after giving effect thereto, no Default
shall exist:
THE BORROWER MAY MERGE WITH ANY SUBSIDIARY GUARANTOR AND ANY SUBSIDIARY
GUARANTOR MAY MERGE WITH THE BORROWER OR ANY OTHER SUBSIDIARY GUARANTOR,
PROVIDED THAT IN CONNECTION WITH ANY MERGER INVOLVING THE BORROWER, THE
BORROWER SHALL BE THE SURVIVOR THEREOF;
ANY SUBSIDIARY WHICH IS NOT A SUBSIDIARY GUARANTOR MAY MERGE WITH ANY OTHER
SUBSIDIARY WHICH IS NOT A SUBSIDIARY GUARANTOR;
ANY SUBSIDIARY MAY SELL, TRANSFER, LEASE OR OTHERWISE DISPOSE OF ITS ASSETS
TO THE BORROWER OR TO ANY SUBSIDIARY GUARANTOR;
THE BORROWER OR ANY SUBSIDIARY MAY SELL, TRANSFER, LEASE OR OTHERWISE
DISPOSE OF ITS ASSETS IN A TRANSACTION THAT IS NOT PERMITTED BY SECTION 8.3,
PROVIDED THAT SUCH SALE, TRANSFER, LEASE OR OTHER DISPOSITION IS ALSO
PERMITTED BY SECTION 8.6;
INTENTIONALLY OMITTED;
INTENTIONALLY OMITTED;
THE BORROWER MAY MERGE INTO A NEWLY FORMED CORPORATION INCORPORATED UNDER
DELAWARE LAW, WITH SUCH DELAWARE CORPORATION AS THE SURVIVOR, PROVIDED,
HOWEVER, (i) NO DEFAULT WOULD EXIST IMMEDIATELY BEFORE OR AFTER GIVING
EFFECT THERETO, (ii) SUCH SURVIVING CORPORATION SHALL HAVE EXECUTED AND
DELIVERED TO THE ADMINISTRATIVE AGENT AN ASSUMPTION AGREEMENT IN FORM AND
SUBSTANCE SATISFACTORY TO IT PURSUANT TO WHICH SUCH SURVIVING CORPORATION
ASSUMES THE OBLIGATIONS OF THE BORROWER UNDER THE LOAN DOCUMENTS, (iii) THE
SURVIVING CORPORATION EXECUTES AND DELIVERS TO THE ADMINISTRATIVE AGENT SUCH
UCC-1 FINANCING STATEMENTS AND OTHER DOCUMENTS AS THE ADMINISTRATIVE AGENT
SHALL REASONABLY REQUEST IN CONNECTION WITH THE PERFECTION OF THE SECURITY
INTERESTS GRANTED UNDER THE COLLATERAL DOCUMENTS.
SECTION 8.4. INVESTMENTS, LOANS, ADVANCES AND GUARANTEES
The Borrower shall not, and shall not permit any Subsidiary
to, purchase or otherwise acquire, hold or invest in any derivative product,
or any Capital Stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the
foregoing), or make or permit to exist any loans or advances to, make or
permit to exist any Guarantees of any obligations of, or make or permit to
exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions
(including pursuant to any merger)) any assets of any other Person
constituting a business unit, except:
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INVESTMENTS IN CASH EQUIVALENTS AND INVESTMENT GRADE SECURITIES;
INVESTMENTS EXISTING ON THE DATE HEREOF AS SET FORTH ON SCHEDULE 8.4;
INVESTMENTS MADE BY THE BORROWER IN THE EQUITY SECURITIES OF ANY SUBSIDIARY
GUARANTOR AND MADE BY ANY SUBSIDIARY GUARANTOR IN THE EQUITY SECURITIES OF
ANY OTHER SUBSIDIARY GUARANTOR;
LOANS OR ADVANCES MADE BY THE BORROWER TO ANY SUBSIDIARY GUARANTOR AND MADE
BY ANY SUBSIDIARY TO THE BORROWER OR ANY SUBSIDIARY GUARANTOR, PROVIDED THAT
IN THE EVENT THAT ANY SUCH LOANS AND ADVANCES MADE BY A LOAN PARTY ARE
EVIDENCED BY A PROMISSORY NOTE, SUCH PROMISSORY NOTE SHALL BE PLEDGED
PURSUANT TO THE SECURITY AGREEMENT AS ADDITIONAL COLLATERAL;
ACQUISITIONS MADE BY THE BORROWER FROM ANY SUBSIDIARY GUARANTOR AND MADE BY
ANY SUBSIDIARY GUARANTOR FROM THE BORROWER OR ANY OTHER SUBSIDIARY GUARANTOR;
ACQUISITIONS PERMITTED BY SECTION 8.5;
GUARANTEES PERMITTED BY SECTION 8.1(d) AND HEDGING AGREEMENTS PERMITTED BY
SECTION 8.8; AND LOANS AND ADVANCES MADE BY THE BORROWER TO XXXXX XXXXXX AND
J. XXXXXXX XXXXX IN AN AGGREGATE PRINCIPAL AMOUNT NOT EXCEEDING $1,208,000
AND $302,000, RESPECTIVELY, AT ANY TIME OUTSTANDING, TOGETHER WITH ANY
EVIDENCE THEREOF, PROVIDED THAT THE PROCEEDS OF EACH SUCH LOAN OR ADVANCE
SHALL BE USED SOLELY FOR THE PURPOSE OF ENABLING THEM TO PAY OR SATISFY THEIR
RESPECTIVE TAX LIABILITIES.
Notwithstanding anything in this Agreement to the contrary, all
invested customer deposits shall be invested in cash, Cash Equivalents and
Investment Grade Securities.
SECTION 8.5. ACQUISITIONS
The Borrower shall not, and shall not permit any Subsidiary
to, at any time, make any purchase or other acquisition (including by way of
a dividend received or otherwise and whether in a single transaction or in a
series of related transactions) of (i) any assets of any other Person that,
taken together, constitute a business unit, (ii) any Capital Stock of any
other Person if, immediately thereafter, such other Person would be a
Subsidiary of the Borrower (iii) any assets of any other Person otherwise not
in the ordinary course of business, or (iv) enter into any binding agreement
to perform any transaction described in clauses (i), (ii) or (iii) above
which is not contingent on obtaining the consent of the Required Lenders
(each transaction described in clauses (i), (ii), (iii) and (iv) above being
referred to as an "ACQUISITION"), except that the Borrower or any Subsidiary
may make Acquisitions, provided that:
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THE BORROWER OR ANY SUBSIDIARY GUARANTOR SHALL HAVE RECEIVED NET CASH
PROCEEDS ATTRIBUTABLE TO ONE OR MORE EQUITY ISSUANCES AFTER THE SECOND
RESTATEMENT DATE IN AN AGGREGATE AMOUNT GREATER THAN OR EQUAL TO $25,000,000;
NO DEFAULT SHALL OR WOULD EXIST IMMEDIATELY BEFORE OR AFTER GIVING EFFECT TO
EACH SUCH ACQUISITION AND ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN ARTICLE 4 SHALL BE TRUE AND CORRECT AS IF THEN MADE;
ON THE DATE OF SUCH ACQUISITION, EBITDA FOR THE FOUR QUARTER TRAILING PERIOD
IS GREATER THAN OR EQUAL TO $12,000,000;
THE SUM (THE "ACQUISITION CONSIDERATION") OF (i) THE CASH CONSIDERATION PAID
OR AGREED TO BE PAID IN CONNECTION WITH SUCH ACQUISITION PLUS (ii) THE FAIR
MARKET VALUE OF ALL NON-CASH CONSIDERATION PAID OR AGREED TO BE PAID IN
CONNECTION WITH SUCH ACQUISITION PLUS (iii) AN AMOUNT EQUAL TO THE PRINCIPAL
OR STATED AMOUNT OF ALL LIABILITIES ASSUMED OR INCURRED BY ANY LOAN PARTY IN
CONNECTION WITH SUCH ACQUISITION SHALL NOT EXCEED $10,000,000 AND THE
ACQUISITION CONSIDERATION WITH RESPECT TO SUCH ACQUISITION TOGETHER WITH THE
ACQUISITION CONSIDERATION OF ALL OTHER ACQUISITIONS MADE ON OR AFTER THE
SECOND RESTATEMENT DATE SHALL NOT EXCEED THE LESSER OF (x) $15,000,000 AND
(y) AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF NET CASH PROCEEDS RECEIVED BY
THE BORROWER OR ANY SUBSIDIARY GUARANTOR ATTRIBUTABLE TO ONE OR MORE EQUITY
ISSUANCES AFTER THE SECOND RESTATEMENT DATE LESS $25,000,000;
THE PERSON OR BUSINESS ACQUIRED IN SUCH ACQUISITION IS IN THE LINE OF
BUSINESS; AND
THE BORROWER SHALL HAVE DELIVERED TO THE ADMINISTRATIVE AGENT AND EACH
LENDER A CERTIFICATE OF A FINANCIAL OFFICER AS TO THE FOREGOING MATTERS
CONTAINING CALCULATIONS (IN REASONABLE DETAIL) OF SUCH EBITDA FOR SUCH FOUR
QUARTER TRAILING PERIOD AND CALCULATIONS ON A PRO-FORMA BASIS AS OF THE DATE
OF SUCH ACQUISITION AND FOR THE PERIOD OF THE SUCCEEDING FOUR FISCAL
QUARTERS DEMONSTRATING COMPLIANCE WITH THE FINANCIAL COVENANTS CONTAINED IN
SECTION 8.14.
SECTION 8.6. DISPOSITIONS
The Borrower shall not, and shall not permit any Subsidiary
to, sell, assign, lease, transfer or otherwise dispose of any property or
assets, except:
(i) SALES OF INVENTORY AND UNCONSOLIDATED INVESTMENTS IN THE ORDINARY COURSE
OF BUSINESS, (ii) SALES, ASSIGNMENTS, TRANSFERS OR OTHER DISPOSITIONS OF ANY
PROPERTY OR ASSETS THAT, IN THE REASONABLE OPINION OF THE BORROWER OR SUCH
SUBSIDIARY, AS THE CASE MAY BE, ARE OBSOLETE OR NO LONGER USEFUL IN THE
CONDUCT OF ITS BUSINESS AND (iii) INVESTMENTS IN CASH EQUIVALENTS, AND
INVESTMENT GRADE SECURITIES; SALES OF MARGIN STOCK, IF AND TO THE EXTENT THAT
THE VALUE OF THE MARGIN STOCK OF THE BORROWER AND THE SUBSIDIARIES EXCEEDS
25% OF THE VALUE OF THE ASSETS (AS DETERMINED BY ANY REASONABLE METHOD) OF
THE BORROWER AND THE SUBSIDIARIES;
SALES, ASSIGNMENTS, TRANSFERS, LEASES AND OTHER DISPOSITIONS MADE BY THE
BORROWER TO ANY SUBSIDIARY GUARANTOR AND MADE BY ANY SUBSIDIARY GUARANTOR TO
THE BORROWER OR ANY OTHER SUBSIDIARY GUARANTOR; AND
SALES, ASSIGNMENTS, LEASES, TRANSFERS OR OTHER DISPOSITIONS NOT OTHERWISE
DESCRIBED IN THIS SECTION 8.6 (EACH A "Disposition"), PROVIDED THAT (i)
IMMEDIATELY BEFORE AND AFTER GIVING EFFECT TO EACH SUCH DISPOSITION, NO
DEFAULT SHALL OR WOULD EXIST, (ii) 100% OF THE TOTAL CONSIDERATION RECEIVED
OR TO BE RECEIVED THEREFOR BY THE BORROWER OR THE SUBSIDIARIES SHALL BE
PAYABLE IN CASH OR CASH EQUIVALENTS ON OR BEFORE THE CLOSING THEREOF AND
SHALL NOT BE LESS THAN THE FAIR MARKET VALUE THEREOF AS REASONABLY DETERMINED
BY THE MANAGING PERSON OF THE BORROWER OR SUCH SUBSIDIARY, (iii) THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE RECEIVED (A) WRITTEN NOTICE
THEREOF NOT LESS THAN TEN BUSINESS DAYS PRIOR TO EACH SUCH DISPOSITION, AND
(B) A CERTIFICATE IN RESPECT THEREOF SIGNED BY A DULY AUTHORIZED OFFICER OF
THE BORROWER (x) IDENTIFYING THE PROPERTY OR OTHER ASSET SUBJECT TO SUCH
DISPOSITION, AND CERTIFYING (y) THAT THE CONSIDERATION RECEIVED OR TO BE
RECEIVED BY THE BORROWER OR SUCH SUBSIDIARY FOR SUCH PROPERTY HAS BEEN
DETERMINED BY THE MANAGING PERSON THEREOF TO BE NOT LESS THAN THE FAIR MARKET
VALUE OF SUCH PROPERTY AND (z) THE TOTAL CONSIDERATION TO BE RECEIVED IN
RESPECT OF SUCH DISPOSITION, TOGETHER WITH ESTIMATES OF ITEMS TO BE DEDUCTED
THEREFROM IN ARRIVING AT THE NET CASH PROCEEDS THEREOF.
SECTION 8.7. RESTRICTED PAYMENTS
The Borrower shall not, and shall not permit any Subsidiaries
to declare, pay or make or agree to declare, pay or make any dividend or
other distribution, direct or indirect, on account of any
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Capital Stock issued by such Person now or hereafter outstanding (other than
a dividend payable solely in shares or other units of such Capital Stock to
the holders of such shares or other units) or any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition, direct or
indirect, of any shares of any class of its Capital Stock now or hereafter
outstanding (collectively, "RESTRICTED PAYMENTS"), except THE BORROWER MAY
DECLARE AND PAY DIVIDENDS WITH RESPECT TO ITS EQUITY SECURITIES PAYABLE
SOLELY IN ADDITIONAL SHARES OF ITS EQUITY SECURITIES,
ANY SUBSIDIARY MAY DECLARE AND PAY DIVIDENDS WITH RESPECT TO ITS EQUITY
SECURITIES TO THE BORROWER OR ANY SUBSIDIARY GUARANTOR;
THE BORROWER MAY DECLARE AND PAY CASH DIVIDENDS ON PREFERRED STOCK,
CONVERTIBLE PREFERRED STOCK OR SIMILAR SECURITIES ISSUED IN ONE OR MORE
EQUITY ISSUANCES AFTER THE SECOND RESTATEMENT DATE, PROVIDED THAT (i) NO
DEFAULT SHALL OR WOULD EXIST IMMEDIATELY BEFORE OR AFTER THE DECLARATION OR
PAYMENT THEREOF AND (ii) AS OF THE DATE OF SUCH DECLARATION OR PAYMENT,
EBITDA FOR THE FOUR QUARTER TRAILING PERIOD IS GREATER THAN OR EQUAL TO
$18,000,000; PROVIDED, FURTHER, THAT THE AGGREGATE AMOUNT OF SUCH DIVIDENDS
PAID IN ANY FISCAL YEAR SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO 25% OF
EXCESS CASH FLOW FOR THE FOUR QUARTER TRAILING PERIOD DETERMINED AS OF THE
DATE OF SUCH DECLARATION OR PAYMENT;
THE BORROWER MAY ACCEPT IN SATISFACTION OF THE INDEBTEDNESS OF J. XXXXXXX
XXXXX IDENTIFIED IN SECTION 8.4(h) HEREOF, SHARES OF CAPITAL STOCK OF
BORROWER OWNED BY XX. XXXXX; AND THE PREFERRED STOCK, CONVERTIBLE PREFERRED
STOCK OR OTHER SIMILAR SECURITY TO BE ISSUED BY THE BORROWER AFTER THE
SECOND RESTATEMENT DATE MAY (i) PROVIDE FOR THE ACCRUAL OF A DIVIDEND,
PROVIDED THAT THE HOLDER THEREOF SHALL HAVE NO RIGHT, CLAIM OR CAUSE OF
ACTION RELATING TO ANY SUCH DIVIDEND OR THE PAYMENT THEREOF UNLESS AND UNTIL
SUCH DIVIDEND HAS BEEN DECLARED BY THE BOARD OF DIRECTORS OF THE BORROWER,
AND THE BOARD OF DIRECTORS OF THE BORROWER MAY NOT DECLARE OR PAY ANY SUCH
DIVIDEND UNLESS PERMITTED UNDER SECTION 8.7, AND (ii) CONTAIN A REDEMPTION
FEATURE, PROVIDED SUCH PREFERRED STOCK, CONVERTIBLE PREFERRED STOCK OR OTHER
SIMILAR SECURITY IS NOT DISQUALIFIED STOCK.
SECTION 8.8. HEDGING AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary
to, enter into any Hedging Agreements, other than Hedging Agreements entered
into in the ordinary course of business to hedge or mitigate risks to which
the Borrower or any Subsidiary is exposed in the conduct of its business or
the management of its liabilities.
SECTION 8.9. SALE AND LEASE-BACK TRANSACTIONS
The Borrower shall not, and shall not permit any Subsidiary
to, enter into an arrangement with any Person or group of Persons providing
for the renting or leasing by the Borrower or any Subsidiary of any property
or asset which has been or is to be sold or transferred by the Borrower or
any Subsidiary to any such Person.
SECTION 8.10. LINES OF BUSINESS
The Borrower shall not, and shall not permit any Subsidiary
to, engage in any business other than the Line of Business.
SECTION 8.11. TRANSACTIONS WITH AFFILIATES
The Borrower shall not, and shall not permit any Subsidiary
to, become a party to any transaction with an Affiliate, or permit any
Subsidiary so to do, unless the Borrower's or such Subsidiary's Managing
Person shall have determined that the terms and conditions relating thereto
are as favorable to the Borrower or such Subsidiary as those which would be
obtainable at the time in a comparable arms-length transaction with a Person
other than an Affiliate, provided that this Section shall not apply to any
transaction permitted under Section 8.4(h).
SECTION 8.12. USE OF PROCEEDS
The Borrower shall not use the proceeds of the Loans for any
purpose other than working capital purposes that are consistent with the
provisions hereof, including the payment of Fees hereunder.
SECTION 8.13. RESTRICTIVE AGREEMENTS
The Borrower shall not, and shall not permit any Subsidiary
to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon the ability of any such Subsidiary to pay dividends or other
distributions with respect to any shares of its Capital Stock or to make or
repay loans or advances to the Borrower or any other Subsidiary of the
Borrower or to Guarantee Indebtedness of the Borrower or any other
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Subsidiary of the Borrower, provided that the foregoing shall not apply to
restrictions and conditions imposed by applicable law or by this Agreement.
SECTION 8.14. FINANCIAL COVENANTS
Leverage Ratio. THE BORROWER SHALL NOT PERMIT THE LEVERAGE RATIO TO AT ANY
TIME EXCEED THE RATIO SET FORTH BELOW WITH RESPECT TO THE APPLICABLE PERIOD
SET FORTH BELOW:
=========================================================================================
PERIOD RATIO
-----------------------------------------------------------------------------------------
September 30, 1999 through September 30, 2000 Not tested
-----------------------------------------------------------------------------------------
October 1, 2000 through December 31, 2000 4.00:1.00
-----------------------------------------------------------------------------------------
January 1, 2001 through December 31, 2001 2.75:1.00
-----------------------------------------------------------------------------------------
January 1, 2002 and thereafter 2.50:1.00
=========================================================================================
Notwithstanding the foregoing, in the event that the Borrower or any
Subsidiary Guarantor has received an aggregate of $25,000,000 or more in Net
Cash Proceeds from one or more Equity Issuances after the Second Restatement
Date and on or before December 31, 2000, during the period from the date on
which the Borrower or any Subsidiary Guarantor has received at least
$25,000,000 in such Net Cash Proceeds through December 31, 2000, the maximum
permitted Leverage Ratio shall be 2.75:1.00 rather than 4.00:1.00 as set
forth in the preceding table.
Interest Coverage Ratio. THE BORROWER SHALL NOT PERMIT THE INTEREST COVERAGE
RATIO AS OF THE LAST DAY OF ANY FISCAL QUARTER TO BE LESS THAN THE RATIO SET
FORTH BELOW WITH RESPECT TO THE APPLICABLE PERIOD SET FORTH BELOW:
=========================================================================================
PERIOD RATIO
-----------------------------------------------------------------------------------------
July 1, 1999 through September 30, 1999 3.50:1.00
-----------------------------------------------------------------------------------------
October 1, 1999 through December 31, 1999 1.90:1.00
-----------------------------------------------------------------------------------------
January 1, 2000 through March 31, 2000 1.15:1.00
-----------------------------------------------------------------------------------------
April 1, 2000 through June 30, 2000 1.70:1.00
-----------------------------------------------------------------------------------------
July 1, 2000 through September 30, 2000 2.50:1.00
-----------------------------------------------------------------------------------------
October 1, 2000 through December 31, 2000 3.25:1.00
-----------------------------------------------------------------------------------------
January 1, 2001 and thereafter 5.00:1.00
=========================================================================================
Fixed Charge Coverage Ratio. THE BORROWER SHALL NOT PERMIT THE FIXED CHARGE
COVERAGE RATIO AS OF THE LAST DAY OF ANY FISCAL QUARTER TO BE LESS THAN THE
RATIO SET FORTH BELOW WITH RESPECT TO THE APPLICABLE PERIOD SET FORTH BELOW:
=========================================================================================
PERIOD RATIO
-----------------------------------------------------------------------------------------
September 30, 1999 through September 30, 2000 Not tested
-----------------------------------------------------------------------------------------
October 1, 2000 through December 31, 2000 1.00:1.00
-----------------------------------------------------------------------------------------
January 1, 2001 and thereafter 1.50:1.00
=========================================================================================
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Minimum Net Worth. THE BORROWER SHALL NOT PERMIT NET WORTH TO BE LESS THAN:
as of each of December 31, 1998, March 31, 1999, June 30, 1999 and September
30, 1999, an amount equal to $44,000,000,
as of each of December 31, 1999, March 31, 2000, June 30, 2000 and September
30, 2000, an amount equal to $44,000,000 plus the sum for the fiscal year
ended December 31, 1999, of 75% of the net profit (but not net loss) of the
Borrower and the Subsidiaries on a consolidated basis for such fiscal year,
as of each of December 31, 2000, March 31, 2001, June 30, 2001 and September
30, 2001, an amount equal to the amount calculated under clause (ii) above
plus the sum for the fiscal year ended December 31, 2000, of 75% of the net
profit (but not net loss) of the Borrower and the Subsidiaries on a
consolidated basis for such fiscal year,
as of December 31, 2001, an amount equal to the amount calculated under
clause (iii) above plus the sum for the fiscal year ended December 31, 2001,
of 75% of the net profit (but not net loss) of the Borrower and the
Subsidiaries on a consolidated basis for such fiscal year,
Capital Expenditures. THE BORROWER SHALL NOT MAKE ANY CAPITAL EXPENDITURES
(OR INCUR ANY OBLIGATION TO MAKE ANY CAPITAL EXPENDITURE) OR PERMIT ANY
SUBSIDIARY TO DO SO, IN ANY FOUR QUARTER TRAILING PERIOD IN AN AGGREGATE
AMOUNT IN EXCESS OF THE AMOUNTS SET FORTH BELOW FOR SUCH PERIOD (TO BE
CALCULATED ON A NONCUMULATIVE BASIS SO THAT AMOUNTS NOT EXPENDED IN A FISCAL
YEAR MAY NOT BE CARRIED OVER AND EXPENDED IN ANY SUBSEQUENT FISCAL YEAR):
=========================================================================================
PERIOD AMOUNT
-----------------------------------------------------------------------------------------
July 1, 1999 through September 30, 1999 $6,500,000
-----------------------------------------------------------------------------------------
October 1, 1999 through December 31, 1999 $7,000,000
-----------------------------------------------------------------------------------------
January 1, 2000 through March 31, 2000 $7,125,000
-----------------------------------------------------------------------------------------
April 1, 2000 through June 30, 2000 $6,750,000
-----------------------------------------------------------------------------------------
July 1, 2000 through September 30, 2000 $6,750,000
-----------------------------------------------------------------------------------------
October 1, 2000 through December 31, 2000 $6,125,000
-----------------------------------------------------------------------------------------
January 1, 2001 and thereafter $6,500,000
=========================================================================================
Customer Deposit Ratio. THE BORROWER SHALL NOT PERMIT THE CUSTOMER DEPOSIT
RATIO AT ANY TIME DURING THE PERIOD SE FORTH BELOW TO BE LESS THAN THE RATIO
SET FORTH BELOW WITH RESPECT TO THE APPLICABLE PERIOD SET FORTH BELOW:
=========================================================================================
PERIOD RATIO
-----------------------------------------------------------------------------------------
September 30, 1999 through September 30, 2000 Not tested
-----------------------------------------------------------------------------------------
October 1, 2000 and thereafter 0.75:1.00
=========================================================================================
Minimum EBITDA. THE BORROWER SHALL NOT PERMIT EBITDA AS OF THE LAST DAY OF
ANY FISCAL QUARTER (CALCULATED ON A FOUR QUARTER TRAILING PERIOD BASIS)
DURING THE PERIODS SET FORTH IN THE TABLE BELOW BE LESS THAN THE AMOUNTS SET
FORTH BELOW IN SUCH TABLE FOR SUCH PERIOD, PROVIDED THAT FOR PURPOSES OF THIS
SUBSECTION (g), EBITDA SHALL BE ADJUSTED AS FOLLOWS: (i) WITH RESPECT TO THE
FOUR QUARTER TRAILING PERIOD ENDED SEPTEMBER 30, 1999, BY DEDUCTING THE SUM
OF $2,237,716 FROM EBITDA AS CALCULATED UNDER THE DEFINITION THEREOF, (ii)
WITH RESPECT TO THE FOUR QUARTER TRAILING PERIOD ENDING DECEMBER 31, 1999, BY
DEDUCTING THE SUM OF $1,852,761 FROM EBITDA AS CALCULATED UNDER THE
DEFINITION THEREOF, (iii) WITH RESPECT TO THE FOUR QUARTER TRAILING PERIOD
ENDING MARCH 31, 2000, BY DEDUCTING THE SUM OF $921,000 FROM EBITDA AS
CALCULATED UNDER THE DEFINITION THEREOF, AND (iv) WITH RESPECT TO EACH FOUR
QUARTER TRAILING PERIOD ENDING THEREAFTER, BY COMPUTING EBITDA ON A
CONSISTENT BASIS TO REFLECT ACQUISITIONS AND DISPOSITIONS MADE BY THE
BORROWER AND THE SUBSIDIARIES
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DURING SUCH FOUR QUARTER TRAILING PERIOD AS IF THEY OCCURRED AT THE BEGINNING
OF SUCH FOUR QUARTER TRAILING PERIOD:
=========================================================================================
PERIOD AMOUNT
-----------------------------------------------------------------------------------------
July 1, 1999 through September 30, 1999 $5,800,000
-----------------------------------------------------------------------------------------
October 1, 1999 through December 31, 1999 $2,900,000
-----------------------------------------------------------------------------------------
January 1, 2000 through March 31, 2000 $3,150,000
-----------------------------------------------------------------------------------------
April 1, 2000 through June 30, 2000 $6,500,000
-----------------------------------------------------------------------------------------
July 1, 2000 through September 30, 2000 $10,400,000
=========================================================================================
SECTION 8.15. ACCOUNTS
The Borrower shall not, and shall not permit any Subsidiary to establish or
maintain any Securities Account unless it shall have given the Administrative
Agent at least 30 days prior written notice thereof and the Person with whom
such Securities Account will be maintained has entered into a Control
Agreement, provided that no such Control Agreement shall be required to the
extent that the Borrower demonstrates to the reasonable satisfaction of the
Administrative Agent (i) that such Control Agreement or the granting of a
security interest in such Securities Account is prohibited by contract in
effect on the Second Restatement Date or is prohibited by law, or (ii) that
such Securities Account does not contain Collateral. In addition, the
relevant Loan Party shall execute and deliver such UCC financing statements
as may requested by the Administrative Agent in connection with the
perfection of its security interest in any Securities Account which contains
Collateral.
ARTICLE 9. DEFAULTS
SECTION 9.1. EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT"
hereunder:
THE FAILURE OF THE BORROWER TO MAKE (i) ANY PAYMENT OF PRINCIPAL ON ANY
LOAN, OR IN RESPECT OF ANY REIMBURSEMENT OBLIGATION, WHEN DUE AND PAYABLE,
OR (ii) ANY DEPOSIT INTO THE CASH COLLATERAL ACCOUNT WHEN REQUIRED HEREBY;
OR
THE FAILURE OF THE BORROWER TO MAKE ANY PAYMENT OF INTEREST, FEES, EXPENSES
OR OTHER AMOUNTS PAYABLE UNDER ANY LOAN DOCUMENT OR OTHERWISE TO THE
ADMINISTRATIVE AGENT WITH RESPECT TO THE LOAN FACILITIES ESTABLISHED
HEREUNDER WITHIN THREE BUSINESS DAYS OF THE DATE WHEN DUE AND PAYABLE; OR THE
FAILURE OF THE BORROWER TO OBSERVE OR PERFORM ANY COVENANT OR AGREEMENT
CONTAINED IN SECTION 7.9, 7.10, 7.11 OR ARTICLE 8; OR
THE FAILURE OF ANY LOAN PARTY TO OBSERVE OR PERFORM ANY OTHER TERM, COVENANT,
OR AGREEMENT CONTAINED IN ANY LOAN DOCUMENT TO WHICH IT IS A PARTY AND SUCH
FAILURE SHALL HAVE CONTINUED UNREMEDIED FOR A PERIOD OF 30 DAYS AFTER SUCH
LOAN PARTY SHALL HAVE OBTAINED KNOWLEDGE THEREOF; OR
ANY REPRESENTATION OR WARRANTY MADE BY ANY LOAN PARTY (OR BY AN OFFICER
THEREOF ON ITS BEHALF) IN ANY LOAN DOCUMENT OR IN ANY CERTIFICATE, REPORT,
OPINION (OTHER THAN AN OPINION OF COUNSEL) OR OTHER DOCUMENT DELIVERED OR TO
BE DELIVERED PURSUANT THERETO, SHALL PROVE TO HAVE BEEN INCORRECT OR
MISLEADING (WHETHER BECAUSE OF MISSTATEMENT OR OMISSION) IN ANY MATERIAL
RESPECT WHEN MADE; OR THE FAILURE OF ANY LOAN PARTY TO MAKE ANY PAYMENT
(WHETHER OF PRINCIPAL OR INTEREST AND REGARDLESS OF AMOUNT) IN RESPECT OF
MATERIAL LIABILITIES WHEN DUE OR WITHIN ANY GRACE PERIOD FOR THE PAYMENT
THEREOF; OR
ANY EVENT OR CONDITION OCCURS THAT RESULTS IN ANY MATERIAL LIABILITY
BECOMING OR BEING DECLARED TO BE DUE AND PAYABLE PRIOR TO THE SCHEDULED
MATURITY THEREOF, OR THAT ENABLES OR PERMITS (WITH OR WITHOUT THE GIVING OF
NOTICE, THE LAPSE OF TIME OR BOTH) THE HOLDER OR HOLDERS OF ANY MATERIAL
LIABILITY OR ANY TRUSTEE OR AGENT ON ITS OR THEIR BEHALF TO CAUSE ANY
MATERIAL LIABILITY TO BE DUE AND PAYABLE, OR TO REQUIRE THE PREPAYMENT,
REPURCHASE, REDEMPTION OR DEFEASANCE THEREOF, IN EACH CASE PRIOR TO THE
SCHEDULED MATURITY THEREOF (IN EACH CASE AFTER GIVING EFFECT TO ANY
APPLICABLE GRACE PERIOD); OR ANY LOAN PARTY SHALL (i) SUSPEND OR DISCONTINUE
ITS BUSINESS (EXCEPT TO THE EXTENT PERMITTED BY SECTION 7.3), (ii) MAKE AN
ASSIGNMENT FOR THE BENEFIT OF CREDITORS, (iii) GENERALLY NOT BE PAYING ITS
DEBTS AS SUCH DEBTS BECOME DUE, (iv) ADMIT IN WRITING ITS INABILITY TO PAY
ITS DEBTS AS THEY BECOME DUE, (v) FILE A
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VOLUNTARY PETITION IN BANKRUPTCY, (vi) BECOME INSOLVENT, (vii) FILE ANY
PETITION OR ANSWER SEEKING FOR ITSELF ANY REORGANIZATION, ARRANGEMENT,
COMPOSITION, READJUSTMENT OF DEBT, LIQUIDATION OR DISSOLUTION OR SIMILAR
RELIEF UNDER ANY PRESENT OR FUTURE STATUTE, LAW OR REGULATION OF ANY
JURISDICTION, (viii) PETITION OR APPLY TO ANY TRIBUNAL FOR ANY RECEIVER,
CUSTODIAN OR ANY TRUSTEE FOR ANY SUBSTANTIAL PART OF ITS PROPERTY, (ix) BE
THE SUBJECT OF ANY SUCH PROCEEDING FILED AGAINST IT WHICH REMAINS UNDISMISSED
FOR A PERIOD OF 60 DAYS, (x) FILE ANY ANSWER ADMITTING OR NOT CONTESTING THE
MATERIAL ALLEGATIONS OF ANY SUCH PETITION FILED AGAINST IT OR ANY ORDER,
JUDGMENT OR DECREE APPROVING SUCH PETITION IN ANY SUCH PROCEEDING, (xi) SEEK,
APPROVE, CONSENT TO, OR ACQUIESCE IN ANY SUCH PROCEEDING, OR IN THE
APPOINTMENT OF ANY TRUSTEE, RECEIVER, SEQUESTRATOR, CUSTODIAN, LIQUIDATOR, OR
FISCAL AGENT FOR IT, OR ANY SUBSTANTIAL PART OF ITS PROPERTY, OR AN ORDER IS
ENTERED APPOINTING ANY SUCH TRUSTEE, RECEIVER, CUSTODIAN, LIQUIDATOR OR
FISCAL AGENT AND SUCH ORDER REMAINS IN EFFECT FOR 60 DAYS, OR (xii) TAKE ANY
FORMAL ACTION FOR THE PURPOSE OF EFFECTING ANY OF THE FOREGOING OR LOOKING TO
THE LIQUIDATION OR DISSOLUTION OF THE BORROWER, SUCH SUBSIDIARY OR SUCH OTHER
LOAN PARTY; OR
AN (i) ORDER OR DECREE IS ENTERED BY A COURT HAVING JURISDICTION (A)
ADJUDGING ANY LOAN PARTY BANKRUPT OR INSOLVENT, (B) APPROVING AS PROPERLY
FILED A PETITION SEEKING REORGANIZATION, LIQUIDATION, ARRANGEMENT, ADJUSTMENT
OR COMPOSITION OF OR IN RESPECT OF ANY LOAN PARTY UNDER THE BANKRUPTCY OR
INSOLVENCY LAWS OF ANY JURISDICTION, (C) APPOINTING A RECEIVER, LIQUIDATOR,
ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR (OR OTHER SIMILAR OFFICIAL) OF ANY
LOAN PARTY OR OF ANY SUBSTANTIAL PART OF THE PROPERTY OF ANY THEREOF, OR (D)
ORDERING THE WINDING UP OR LIQUIDATION OF THE AFFAIRS OF ANY LOAN PARTY, AND
ANY SUCH DECREE OR ORDER CONTINUES UNSTAYED AND IN EFFECT FOR A PERIOD OF 60
DAYS OR (ii) ORDER FOR RELIEF IS ENTERED UNDER THE BANKRUPTCY OR INSOLVENCY
LAWS OF ANY JURISDICTION; OR
JUDGMENTS OR DECREES AGAINST ANY LOAN PARTY AGGREGATING IN EXCESS OF $250,000
(UNLESS ADEQUATELY INSURED BY A SOLVENT UNAFFILIATED INSURANCE COMPANY WHICH
HAS ACKNOWLEDGED COVERAGE), SHALL REMAIN UNPAID, UNSTAYED ON APPEAL,
UNDISCHARGED, UNBONDED OR UNDISMISSED FOR A PERIOD OF 60 CONSECUTIVE DAYS; OR
ANY OF THIS AGREEMENT, ANY NOTE, OR ANY SECURITY DOCUMENT SHALL CEASE, FOR
ANY REASON, TO BE IN FULL FORCE AND EFFECT, OR ANY LOAN PARTY SHALL SO ASSERT
IN WRITING OR SHALL DISAVOW ANY OF ITS OBLIGATIONS UNDER ANY OF THIS
AGREEMENT, ANY NOTE, OR ANY SECURITY DOCUMENT; OR
ANY LIEN PURPORTED TO BE CREATED UNDER ANY SECURITY DOCUMENT SHALL CEASE TO
BE, OR SHALL BE ASSERTED BY ANY LOAN PARTY NOT TO BE, A VALID AND PERFECTED
LIEN ON, AND SECURITY INTEREST IN, ANY COLLATERAL, WITH THE PRIORITY REQUIRED
BY THE APPLICABLE SECURITY DOCUMENT, EXCEPT AS A RESULT OF A DISPOSITION
THEREOF TO THE EXTENT PERMITTED UNDER THE LOAN DOCUMENTS; OR
AN ERISA EVENT SHALL HAVE OCCURRED THAT, IN THE OPINION OF THE REQUIRED
LENDERS, WHEN TAKEN TOGETHER WITH ALL OTHER ERISA EVENTS THAT HAVE OCCURRED,
COULD REASONABLY BE EXPECTED TO RESULT IN LIABILITY OF THE BORROWER AND ITS
SUBSIDIARIES IN AN AGGREGATE AMOUNT EXCEEDING (i) IN ANY YEAR, $250,000, OR
(ii) FOR ALL PERIODS, $250,000; OR THE OCCURRENCE OF A CHANGE OF CONTROL.
SECTION 9.2. CONTRACT REMEDIES
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT OR AT ANY TIME THEREAFTER DURING
THE CONTINUANCE THEREOF,
in the case of an Event of Default specified in Section 9.1(h) or 9.1(i),
without declaration or notice to the Borrower, all of the Commitments shall
immediately and automatically terminate, and the Revolving Loans, all accrued
and unpaid interest thereon and all other amounts owing under the Loan
Documents shall immediately become due and payable, and
in all other cases, upon the direction of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare all of the
Commitments to be terminated forthwith, whereupon such Commitments shall
immediately terminate, and/or declare the Revolving Loans, all accrued and
unpaid interest thereon and all other amounts owing under the Loan Documents
to be due and payable forthwith, whereupon the same shall immediately become
due and payable.
In the event that the Revolving Loans, all accrued and unpaid interest
thereon and all other amounts owing under the Loan Documents shall have been
declared due and payable pursuant to the provisions of this Section, the
Administrative Agent (i) upon the direction of the Required Lenders, shall
proceed to enforce the rights of the holders of the Notes and the
Reimbursement Obligations by suit in equity, action at law and/or other
appropriate proceedings, whether for payment or the specific performance of
any covenant or
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agreement contained in the Loan Documents and (ii) may exercise any and all
rights and remedies provided to the Administrative Agent by the Loan
Documents. To the extent permitted by law, except as otherwise expressly
provided in the Loan Documents, the Borrower expressly waives presentment,
demand, protest and all other notices of any kind in connection with the Loan
Documents are hereby expressly waived. To the extent permitted by law, the
Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or
at any time hereafter in force which might delay, prevent or otherwise impede
the performance or enforcement of any Loan Document. IN THE EVENT THAT THE
COMMITMENTS SHALL HAVE TERMINATED OR THE REVOLVING LOANS, ALL ACCRUED AND
UNPAID INTEREST THEREON AND ALL OTHER AMOUNTS OWING UNDER THE LOAN DOCUMENTS
SHALL HAVE BECOME DUE AND PAYABLE PURSUANT TO THE PROVISIONS OF THIS ARTICLE
9, ANY FUNDS RECEIVED BY ANY CREDIT PARTY FROM OR ON BEHALF OF THE BORROWER
(EXCEPT FUNDS RECEIVED BY ANY LENDER AS A RESULT OF A PURCHASE FROM ANY OTHER
LENDER PURSUANT TO SECTION 2.6(c)) SHALL BE REMITTED TO, AND APPLIED BY, THE
ADMINISTRATIVE AGENT IN THE FOLLOWING MANNER AND ORDER:
first, to the payment of interest on, and then the principal portion of, any
Revolving Loans which the Administrative Agent may have advanced on behalf of
any Lender for which the Administrative Agent has not then been reimbursed by
such Lender or any Loan Party,
second, to reimburse the Administrative Agent, the Issuer and the Lenders,
in that order, for any expenses due from the Borrower pursuant to the
provisions of Section 11.4,
third, to the payment of interest on, and then the principal portion of, the
Reimbursement Obligations,
fourth, to the payment of the Fees, pro rata according to the Fees due and
owing to the Credit Parties,
fifth, to the payment of any other fees, expenses or other amounts (other
than the principal of and interest on the Revolving Loans) payable by the
Loan Parties to the Credit Parties under the Loan Documents,
sixth, to the payment, pro rata according to the Revolving Percentage of
each Lender, of interest due on the Revolving Loans,
seventh, to the payment to the Lenders of, and on a pro rata basis in
accordance with, the unpaid principal amount of the Revolving Loans and each
amount then due and payable under each Secured Hedging Agreement, and
eighth, any remaining funds shall be paid to the Borrower or as a court of
competent jurisdiction shall direct.
ARTICLE 10. THE ADMINISTRATIVE AGENT
SECTION 10.1. APPOINTMENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof, together with such actions
and powers as are reasonably incidental thereto.
SECTION 10.2. INDIVIDUAL CAPACITY
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and such Person and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Borrower, any
Subsidiary, or any Affiliate of the Borrower as if it were not the
Administrative Agent hereunder.
SECTION 10.3. EXCULPATORY PROVISIONS
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (1) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (2) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
11.1), and (3) except as expressly set forth herein, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any Subsidiary that
is communicated to or obtained by the bank serving as Administrative Agent or
any of its
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Affiliates in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 11.1) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower
or another Credit Party and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreements, instrument or document, or (v) the satisfaction of any
condition set forth in Articles 5 or 6 or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 10.4. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. The Administrative
Agent may consult with legal counsel (who may be counsel to the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
SECTION 10.5. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, provided that no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of
any rights hereunder. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of this Article
10 shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 10.6. RESIGNATION; SUCCESSOR ADMINISTRATIVE AGENT
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this Section 10.6, the Administrative
Agent may resign at any time by notifying the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall
be a bank with an office in New York, New York, and having combined capital
and surplus of at least $250,000,000 or an Affiliate of any such bank. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 11.4 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or permitted to be taken by any of them while it
was acting as Administrative Agent.
SECTION 10.7. NON-RELIANCE ON OTHER CREDIT PARTIES
Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each
Credit
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Party also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Credit Party and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE 11. OTHER PROVISIONS
SECTION 11.1. AMENDMENTS AND WAIVERS
NO FAILURE TO EXERCISE AND NO DELAY IN EXERCISING, ON THE PART OF ANY CREDIT
PARTY, ANY RIGHT, REMEDY, POWER OR PRIVILEGE UNDER ANY LOAN DOCUMENT SHALL
OPERATE AS A WAIVER THEREOF; NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY
RIGHT, REMEDY, POWER OR PRIVILEGE UNDER ANY LOAN DOCUMENT PRECLUDE ANY OTHER
OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, REMEDY, POWER
OR PRIVILEGE. THE RIGHTS, REMEDIES, POWERS AND PRIVILEGES UNDER THE LOAN
DOCUMENTS ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS, REMEDIES, POWERS
AND PRIVILEGES PROVIDED BY LAW. NO WAIVER OF ANY PROVISION OF ANY LOAN
DOCUMENT OR CONSENT TO ANY DEPARTURE BY ANY LOAN PARTY THEREFROM SHALL IN ANY
EVENT BE EFFECTIVE UNLESS THE SAME SHALL BE PERMITTED BY THIS SECTION, AND
THEN SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE
AND FOR THE PURPOSE FOR WHICH GIVEN. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE MAKING OF A LOAN SHALL NOT BE CONSTRUED AS A WAIVER OF ANY
DEFAULT, REGARDLESS OF WHETHER ANY CREDIT PARTY MAY HAVE HAD NOTICE OR
KNOWLEDGE OF SUCH DEFAULT AT THE TIME.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY LOAN DOCUMENT, WITH
THE WRITTEN CONSENT OF THE REQUIRED LENDERS, THE ADMINISTRATIVE AGENT AND THE
APPROPRIATE PARTIES TO THE LOAN DOCUMENTS (OTHER THAN THE OTHER CREDIT
PARTIES) MAY, FROM TIME TO TIME, ENTER INTO WRITTEN AMENDMENTS, SUPPLEMENTS
OR MODIFICATIONS THEREOF AND, WITH THE CONSENT OF THE REQUIRED LENDERS, THE
ADMINISTRATIVE AGENT ON BEHALF OF THE OTHER CREDIT PARTIES, MAY EXECUTE AND
DELIVER TO ANY SUCH PARTIES A WRITTEN INSTRUMENT WAIVING OR CONSENTING TO THE
DEPARTURE FROM, ON SUCH TERMS AND CONDITIONS AS THE ADMINISTRATIVE AGENT MAY
SPECIFY IN SUCH INSTRUMENT, ANY OF THE REQUIREMENTS OF THE LOAN DOCUMENTS OR
ANY DEFAULT AND ITS CONSEQUENCES; PROVIDED, HOWEVER, THAT NO SUCH AMENDMENT,
SUPPLEMENT, MODIFICATION, WAIVER OR CONSENT SHALL:
increase the Revolving Commitment of any Lender, without such Lender's
consent;
unless agreed to by each Credit Party affected thereby, (A) reduce the
principal amount of any
Extension of Credit, or reduce the rate of interest thereon, or reduce any
fees or other obligations payable under the Loan Documents, (b) extend any
date (including the Maturity Date) fixed for the payment of any principal of
or interest on any Extension of Credit, any fees, or any other obligation
payable under the Loan Documents or (c) extend the expiration date of any
Letter of Credit beyond the Maturity Date;
unless agreed to by all of the Lenders, (A) increase the Aggregate Revolving
Commitment, (B) change the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, (C) change Section 2.6 in a manner that would
alter the pro rata sharing of payments required thereby, (D) consent to any
assignment or delegation by any Loan Party of any of its rights or
obligations under any Loan Document, (E) release any Subsidiary Guarantor
from its obligations under the Subsidiary Guarantee (except as expressly
provided therein or as a result of the termination of the existence of such
Subsidiary Guarantor in a transaction permitted by Sections 8.3, 8.4 or 8.6),
or (F) release any of the Collateral from the Liens of the Security
Documents, except as may be expressly permitted thereunder or in connection
with a transaction permitted by Sections 8.3, 8.4 or 8.6), and
unless agreed to by the Administrative Agent or the Issuer, amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Issuer, respectively, under the Loan Documents.
Any such amendment, supplement, modification, waiver or
consent shall apply equally to each Credit Party and shall be binding upon
each Credit Party and each Loan Party to the applicable Loan Document, and
upon all future holders of the Notes and the Reimbursement Obligations. In
the case of any waiver, the Credit Parties and each Loan Party to the
applicable Loan Document shall be restored to their former position and
rights hereunder and under the outstanding Notes and other Loan Documents to
the extent provided for in such waiver, and any Default waived shall not
extend to any subsequent or other Default, or impair any right consequent
thereon.
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SECTION 11.2. NOTICES
All notices, requests and demands to or upon the respective
parties to the Loan Documents to be effective shall be in writing and, unless
otherwise expressly provided therein, shall be deemed to have been duly given
or made when delivered by hand, one Business Day after having been sent by
overnight courier service, or when deposited in the mail, first-class postage
prepaid, or, in the case of notice by facsimile, when sent to the last
address (including telephone and facsimile numbers) for such party specified
by such party in a written notice delivered to the Administrative Agent and
the Borrower or, if no such written notice was so delivered, as follows:
IN THE CASE OF ANY LOAN PARTY, TO SUCH LOAN PARTY C/O GLOBAL VACATION GROUP,
INC., 0000 XXX XXXX XXXXXX XX, XXXXX 000, XXXXXXXXXX, XX 00000, ATTENTION:
XXX XXXXXX, CHIEF FINANCIAL OFFICER, TELEPHONE (000) 000-0000, FACSIMILE
(000) 000-0000, WITH A COPIES TO: XXXXX & XXXXXXX, L.L.P., COLUMBIA SQUARE,
000 XXXXXXXXXX XXXXXX, X.X., XXXXXXXXXX, X.X. 00000; ATTENTION: XXXXXXXXXXX
X. XXXXX OR X. XXXXX XXXX, ESQ.; TELEPHONE: (000) 000-0000, FACSIMILE: (202)
637-5910;
IN THE CASE OF THE ADMINISTRATIVE AGENT, TO THE BANK OF NEW YORK, ONE WALL
STREET, AGENCY FUNCTION ADMINISTRATION, 00XX XXXXX, XXX XXXX, XXX XXXX 00000;
ATTENTION: XXXXX XXXXXXX, TELEPHONE: (000) 000-0000, FACSIMILE (000) 000-0000
OR 6366 OR 6367; WITH A COPY TO: THE BANK OF NEW YORK, XXX XXXX XXXXXX, XXX
XXXX, XXX XXXX 00000, ATTENTION: XXXXXX XXXXXXXXXXX, ASSISTANT VICE
PRESIDENT, TELEPHONE: (000) 000-0000, FACSIMILE: (000) 000-0000; AND
IN THE CASE OF A LENDER, AT ITS ADDRESS FOR NOTICES SET FORTH ON ITS
SIGNATURE PAGE TO THIS AGREEMENT; provided, however, that any notice, request
or demand by the Borrower pursuant to Sections 2.2, 2.3, 2.6 or 3.3 shall not
be effective until received. Any party to a Loan Document may rely on
signatures of the parties thereto which are transmitted by facsimile or other
electronic means as fully as if originally signed.
SECTION 11.3. SURVIVAL
All covenants, agreements, representations and warranties made
by the Borrower herein and in the certificates or other instruments delivered
in connection with or pursuant to this Agreement shall be considered to have
been relied upon by the other parties hereto and shall survive the execution
and delivery of this Agreement and the making of any Extensions of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder.
SECTION 11.4. EXPENSES; INDEMNITY
THE BORROWER AGREES, ON DEMAND THEREFOR AND WHETHER ANY EXTENSION OF CREDIT
IS MADE (i) TO PAY OR REIMBURSE THE ADMINISTRATIVE AGENT AND ITS RELATED
PARTIES FOR ALL REASONABLE OUT-OF-POCKET EXPENSES INCURRED THEREBY, INCLUDING
THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF COUNSEL, IN CONNECTION WITH
THE DEVELOPMENT, PREPARATION, EXECUTION AND ADMINISTRATION OF, THE LOAN
DOCUMENTS (INCLUDING ANY AMENDMENT, SUPPLEMENT OR OTHER MODIFICATION THERETO
(WHETHER OR NOT EXECUTED OR EFFECTIVE)), ANY DOCUMENTS PREPARED IN CONNECTION
THEREWITH AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY, (ii)
TO PAY OR REIMBURSE EACH CREDIT PARTY FOR ALL OF ITS COSTS AND EXPENSES,
INCLUDING REASONABLE FEES AND DISBURSEMENTS OF COUNSEL, INCURRED IN
CONNECTION WITH (A) THE PROTECTION OR ENFORCEMENT OF ITS RIGHTS UNDER THE
LOAN DOCUMENTS, INCLUDING ANY RELATED COLLECTION PROCEEDINGS AND ANY
NEGOTIATION, RESTRUCTURING OR "WORK-OUT", AND (B) THE ENFORCEMENT OF THIS
SECTION AND (iii) TO PAY OR REIMBURSE THE ADMINISTRATIVE AGENT FOR THE
REASONABLE FEES AND EXPENSES OF ANY CONSULTANT RETAINED BY IT AS PROVIDED
UNDER SECTION 7.7.
THE BORROWER SHALL, ON DEMAND THEREFOR, INDEMNIFY EACH CREDIT PARTY AND EACH
OF THEIR RESPECTIVE RELATED PARTIES (EACH, AN "Indemnified Person") AGAINST,
AND HOLD EACH INDEMNIFIED PERSON HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS,
DAMAGES, PENALTIES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE FEES,
CHARGES AND DISBURSEMENTS OF ANY COUNSEL, INCURRED BY OR ASSERTED AGAINST ANY
INDEMNIFIED PERSON IN CONNECTION WITH OR IN ANY WAY ARISING OUT OF ANY LOAN
DOCUMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION, INCLUDING AS A
RESULT OF (i) ANY BREACH BY THE BORROWER OF THE TERMS OF ANY LOAN DOCUMENT,
THE USE OF PROCEEDS OF ANY EXTENSION OF CREDIT OR ANY ACTION OR FAILURE TO
ACT ON THE PART OF THE BORROWER, (ii) THE CONSUMMATION OR PROPOSED
CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED
HEREBY, (iii) ANY EXTENSION OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM,
(iv) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS SUBSTANCE ON OR
FROM ANY
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PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY, OR ANY
LIABILITY IN RESPECT OF ANY ENVIRONMENTAL LAW RELATED IN ANY WAY TO THE
BORROWER OR ANY SUBSIDIARY, (v) ANY ACTION OR FAILURE TO ACT ON THE PART OF
THE BORROWER OR (vi) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION,
INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY
INDEMNIFIED PERSON IS A PARTY THERETO (COLLECTIVELY, THE "Indemnified
Liabilities"), PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNIFIED
PERSON, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR RELATED EXPENSES RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNIFIED PERSON.
TO THE EXTENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID
BY IT TO THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES UNDER SUBSECTIONS
(a) OR (b) OF THIS SECTION, EACH LENDER SEVERALLY AGREES, ON DEMAND THEREFOR,
TO PAY TO THE ADMINISTRATIVE AGENT SUCH LENDER'S REVOLVING PERCENTAGE OF SUCH
AMOUNT (DETERMINED AS OF THE TIME THAT THE APPLICABLE UNREIMBURSED EXPENSE OR
INDEMNIFIED LIABILITY IS SOUGHT).
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER SHALL NOT ASSERT, AND
HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNIFIED PERSON FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER ACCRUED AND WHETHER
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR) ARISING OUT OF, IN CONNECTION WITH,
OR AS A RESULT OF, THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY
OR ANY EXTENSION OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.
SECTION 11.5. SUCCESSORS AND ASSIGNS
THE LOAN DOCUMENTS SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF EACH OF
THE PARTIES THERETO, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT THAT
NO LOAN PARTY MAY ASSIGN OR OTHERWISE TRANSFER ANY OF ITS RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF EACH CREDIT PARTY
(AND ANY SUCH ATTEMPTED ASSIGNMENT OR TRANSFER WITHOUT SUCH CONSENT SHALL BE
NULL AND VOID). EACH LENDER MAY ASSIGN ALL OR A PORTION OF ITS RIGHTS AND
OBLIGATIONS UNDER THE LOAN DOCUMENTS TO (i) ANY SUBSIDIARY OR AFFILIATE OF
SUCH LENDER, (ii) ANY OTHER LENDER, OR (iii) WITH THE CONSENT OF THE
BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUER (WHICH CONSENTS SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED AND, IN THE CASE OF THE BORROWER'S CONSENT,
SHALL NOT BE REQUIRED DURING THE CONTINUANCE OF AN EVENT OF DEFAULT), ANY
OTHER INSTITUTION, PROVIDED THAT:
EACH SUCH ASSIGNMENT SHALL BE OF A CONSTANT, AND NOT A VARYING, PERCENTAGE OF
THE ASSIGNOR LENDER'S RIGHTS AND OBLIGATIONS UNDER THE LOAN DOCUMENTS; EXCEPT
IN THE CASE OF AN ASSIGNMENT TO A LENDER OR AN AFFILIATE OF A LENDER OR AN
ASSIGNMENT OF THE ENTIRE REMAINING AMOUNT OF THE ASSIGNING LENDER'S REVOLVING
COMMITMENT, THE AGGREGATE AMOUNT OF THE REVOLVING COMMITMENT OF THE ASSIGNING
LENDER SUBJECT TO EACH SUCH ASSIGNMENT (DETERMINED AS OF THE DATE THE
ASSIGNMENT AND ACCEPTANCE AGREEMENT WITH RESPECT TO SUCH ASSIGNMENT IS
DELIVERED TO THE ADMINISTRATIVE AGENT) SHALL NOT BE LESS THAN $5,000,000; AND
THE ASSIGNOR AND SUCH ASSIGNEE SHALL DELIVER TO THE ADMINISTRATIVE AGENT
THREE COPIES OF AN ASSIGNMENT AND ACCEPTANCE AGREEMENT EXECUTED BY EACH OF
THEM, ALONG WITH AN ASSIGNMENT FEE IN THE SUM OF $3,500 FOR THE ACCOUNT OF
THE ADMINISTRATIVE AGENT AND, IF THE ASSIGNEE IS NOT THEN A LENDER, SUCH
ASSIGNEE SHALL DESIGNATE ITS ADDRESS FOR NOTICES AND SHALL DELIVER TO THE
ADMINISTRATIVE AGENT AND, IF SUCH ASSIGNEE IS A FOREIGN CREDIT PARTY, THE
DOCUMENTS REQUIRED BY SECTION 3.7(c).
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement together with the assignment fee therefor and the
consents required to such assignment, if required, the Administrative Agent
shall record the same and execute not less than two copies of such Assignment
and Acceptance Agreement in the appropriate place, deliver one such copy to
the assignor and one such copy to the assignee, and deliver one photocopy
thereof, as executed, to the Borrower. From and after the Assignment
Effective Date specified in, and as defined in, such Assignment and
Acceptance Agreement, the assignee thereunder shall, unless already a Lender,
become a party hereto and shall, for all purposes of the Loan Documents, be
deemed a "Lender" and, to the extent provided in such Assignment and
Acceptance Agreement, the assignor Lender thereunder shall be released from
its obligations under this Agreement and the other Loan Documents. The
Borrower agrees that, if requested, in connection with each such assignment,
it shall at its own cost and expense execute and deliver to the
Administrative Agent or such assignee a Note, each payable to the order of
such assignee and dated the Second Restatement Date.
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The Administrative Agent shall be entitled to rely upon the representations
and warranties made by the assignee under each Assignment and Acceptance
Agreement.
EACH LENDER MAY GRANT PARTICIPATIONS IN ALL OR ANY PART OF ITS RIGHTS AND
OBLIGATIONS UNDER THE LOAN DOCUMENTS TO (i) ANY SUBSIDIARY OR AFFILIATE OF
SUCH LENDER, (ii) ANY OTHER LENDER, OR (iii) ANY OTHER INSTITUTION
REASONABLY ACCEPTABLE TO THE ADMINISTRATION AGENT, PROVIDED THAT (A) SUCH
LENDER'S OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL
REMAIN UNCHANGED, (B) SUCH LENDER SHALL REMAIN SOLELY RESPONSIBLE TO THE
OTHER PARTIES TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS FOR THE
PERFORMANCE OF SUCH OBLIGATIONS, (C) THE BORROWER AND THE CREDIT PARTIES
SHALL CONTINUE TO DEAL SOLELY AND DIRECTLY WITH SUCH LENDER IN CONNECTION
WITH SUCH LENDER'S RIGHTS AND OBLIGATIONS UNDER THE LOAN DOCUMENTS, (D) THE
GRANTING OF SUCH PARTICIPATION DOES NOT REQUIRE THAT ANY ADDITIONAL LOSS,
COST OR EXPENSE BE BORNE BY THE BORROWER AT ANY TIME, AND (E) THE VOTING
RIGHTS OF ANY HOLDER OF ANY PARTICIPATION SHALL BE LIMITED TO DECISIONS THAT
IN ACCORDANCE WITH SECTION 11.1 REQUIRE THE CONSENT OF ALL OF THE LENDERS.
SUBJECT TO SUBSECTION (e) BELOW, ANY LENDER MAY AT ANY TIME ASSIGN ALL OR
ANY PORTION OF ITS RIGHTS UNDER ANY LOAN DOCUMENT TO ANY FEDERAL RESERVE
BANK.
EXCEPT TO THE EXTENT OF ANY ASSIGNMENT PURSUANT TO SUBSECTION (b) ABOVE, NO
LENDER SHALL BE RELIEVED OF ANY OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS
AS A RESULT OF ANY ASSIGNMENT OF OR GRANTING OF PARTICIPATIONS IN, ALL OR
ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THE LOAN DOCUMENTS.
SECTION 11.6. COUNTERPARTS; INTEGRATION
Each Loan Document (other than the Notes) may be executed by
one or more of the parties thereto on any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute
one and the same document. It shall not be necessary in making proof of any
Loan Document to produce or account for more than one counterpart signed by
the party to be charged. Delivery of an executed counterpart of a signature
page of any Loan Document by facsimile shall be effective as delivery of a
manually executed counterpart of such Loan Document. The Loan Documents and
any separate letter agreements between the Borrower and a Credit Party with
respect to fees embody the entire agreement and understanding among the Loan
Parties and the Credit Parties with respect to the subject matter thereof
and supersede all prior agreements and understandings among the Loan Parties
and the Credit Parties with respect to the subject matter thereof.
SECTION 11.7. SEVERABILITY
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of
the remaining provisions thereof shall not be affected or impaired thereby,
and any invalidity, illegality or unenforceability in any jurisdiction shall
not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
SECTION 11.8. GOVERNING LAW
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 11.9. JURISDICTION; SERVICE OF PROCESS
Each party to a Loan Document hereby irrevocably submits to
the nonexclusive jurisdiction of any New York State or Federal court sitting
in the City of New York over any suit, action or proceeding arising out of
or relating to the Loan Documents. Each party to a Loan Document hereby
irrevocably waives, to the fullest extent permitted or not prohibited by
law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in such a court and any
claim that any such suit, action or proceeding brought in such a court has
been brought in an inconvenient forum. Each Loan Party hereby agrees that a
final judgment in any such suit, action or proceeding brought in such a
court, after all appropriate appeals, shall be conclusive and binding upon
it and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall affect any
right that a Credit Party may otherwise have to bring any action or
proceeding relating to Loan Documents against the Borrower or its properties
in the courts of any jurisdiction. Each party to a Loan Document hereby
irrevocably consents to service of process in the
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manner provided for notices in Section 11.2. Nothing in this Agreement will
affect the right of any party to a Loan Document to serve process in any
other manner permitted by law.
SECTION 11.10. WAIVER OF TRIAL BY JURY
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
SECTION 11.11. SAVINGS CLAUSE
This Agreement is intended solely as an amendment of, and contemporaneous
restatement of, the terms and conditions of the Existing Credit Agreement,
and the Notes delivered pursuant hereto are intended to amend, restate and
renew the notes issued under the Existing Credit Agreement. Notwithstanding
anything contained herein to the contrary, it is the intention of the
parties hereto that this Agreement and the Commitments and Extensions of
Credit provided hereunder represent a supplement to, but not a novation or
discharge of, the credit facilities provided by the Existing Credit
Agreement; and the Borrower hereby represents and warrants to each Credit
Party that, after giving effect to the transactions contemplated by this
Agreement, the security interests created by the Security Documents continue
to constitute valid, perfected and first priority security interests
(subject only to Permitted Liens) securing all obligations purported to be
secured thereby, and each of the Security Documents and the security
interests provided therein continue in full force and effect. Nothing in
this Agreement is intended to affect the right of the Lenders to payment of
amounts due under the Existing Credit Agreement for the period prior to the
Second Restatement Date and such right shall be determined under the
provisions of the Existing Credit Agreement.
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GLOBAL VACATION GROUP, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Second Amended and Restated Credit Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and
year first above written.
GLOBAL VACATION GROUP, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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GLOBAL VACATION GROUP, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Revolving Commitment THE BANK OF NEW YORK,
Individually, as Issuer
$15,944,444.44 and as Administrative Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for Notices
The Bank of New York
Agency Function Administration
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 or 6366 or 6367
with a copy to:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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GLOBAL VACATION GROUP, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Revolving Commitment BANK OF AMERICA, N.A. (f/k/a Bank of
America FSB, successor by merger to
Bank of America, N.A., f/k/a
$13,666,666.67 NationsBank, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for Notices
Bank of America, N.A.
0000 Xxxxxxxxx Xxxxx - 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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GLOBAL VACATION GROUP, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Revolving Commitment
FIRST UNION NATIONAL BANK
$11,388,888.89
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for Notices
First Union Capital Markets
000 Xxxxx Xxxxxxx Xxxxxx
XX0000, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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GLOBAL VACATION GROUP, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
CONSENTED TO:
SUNSHINE VACATIONS, INC.
GLOBAL VACATION MANAGEMENT COMPANY
HADDON HOLIDAYS, INC.
GLOBETROTTERS VACATIONS, INC.
CLASSIC CUSTOM VACATIONS, INC
GLOBETROTTERS, INC.
GVG FINANCE COMPANY
FRIENDLY HOLIDAYS, INC.
ISLAND RESORT TOURS, INC.
INTERNATIONAL TRAVEL & RESORTS, INC.
GVG TECHNOLOGY, INC.
AS TO EACH OF THE FOREGOING:
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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